Because we are Final Judicial Review Two Hundred years after Marbury

SUPREME COURT BUFFS in the audience may recognize the provenance of my title, Justice Jackson's wry if not cynical observation, concurring in Brown v. Allen in 1953, that |w]e are not final because we are infallible, but we are infallible only because we are final.2 Fifty years later, that statement remains highly pertinent. Two hundred years after Marbury v. Madison3 established the Supreme Court's authority set aside legislation as inconsistent with the Constitution, the institution of judicial review is, in the hands of the current Supreme Court, as robust as it has ever been. This a group of justices who have taken heart John Marshall's most famous declaration from his most famous opinion: It is, emphatically, the province and duty of the judicial department, say what the law is.4 You have already been treated a discussion of the origins of Marbury and a debate over what Marshall and his contemporaries actually had in mind. Whether the current Court fulfilling that duty in ways that the Marshall Court would regard as appropriate a debate that fortunately not mine resolve. I've been given the somewhat more modest task of bringing the debate up date and offering some reflections on the status of judicial review today. As I hope persuade you, this not some abstract inquiry that was dreamed up satisfy the demands of a bicentennial observance. Rather, the use that the current Supreme Court making of its enormous power to say what the law is is, in fact, the hottest topic in constitutional law today, the subject on which the justices themselves are most deeply and, seemingly, irretrievably divided, and one with enormous consequences for the Court and the country. I'd like use my twenty minutes take you inside the current discourse and demonstrate what it means for the Court be exercising the kind of muscular judicial review that we are witnessing today. Whatever the institution of judicial review was originally thought be, there little doubt about what it has become: a powerful tool in the hands of a Court that has assigned itself the job of policing our democracy's deepest structures: the allocation of power among the branches of the national government and between the federal government and the states. Of course, the Constitution itself gave us the basic outlines, the civics textbook's view of these fundamental arrangements. Congress then filled in some of the blanks. But it's not until we step back and look through the lens of judicial review that we become aware of how much of American government as it currently functions has been informed and shaped by judge-made law: what extent, as Paul Kahn of Yale Law School has phrased it, Constitution does not found judicial review; rather, judicial review invents the Constitution.5 The current Supreme Court's aggressive use of judicial review is, in fact, one of the mysteries that confront us on Marbury's bicentennial. There no obvious external reason why, in the early- mid-1990s, the Rehnquist Court decided reopen what often referred as the New Deal settlement, under which the Supreme Court emerged from the trauma of the Court-packing crisis reconciled an essentially plenary national power that would go unchecked by the historic constraints of federalism, and at the same time having redefined its own essential function as ensuring that the exercise of that power did not violate individual rights. The Court's deferential stance toward Congress during the ensuing decades captured by then-Justice Rehnquist's assertion for the majority in a 1980 decision, Railroad Retirement Board v. Fritz: Where, as here, there are plausible reasons for Congress' action, our inquiry at an end.6 That statement was an accurate reflection of mid-century reality. From 1936 until 1995-that is, from Carier v. Carter Coal,7 which invalidated Congress's effort regulate coal mining through the Bituminous Coal Conservation Act, until United States v. …