Bench Memos

NRO’s home for judicial news and analysis.

Re: Supply-Side SCOTUS


Kathryn:  There’s an even more encouraging aspect of Chief Justice Roberts’s nearly unanimous opinion in Daimler Chrysler v. Cuno.  As I discussed here, Roberts, as a special assistant to the Attorney General in 1982, rejected the prevailing liberal myth that Marbury v. Madison somehow establishes that the Supreme Court is the ultimate arbiter of constitutional questions.  That myth rapidly degenerates, in the minds of those justices who embrace it, into the notion that the Constitution means whatever they say it means.  In yesterday’s opinion, Roberts, implicitly rejecting the mythical Marbury, presents the same accurate account of Marbury’s far more modest holding that he presented in his 1982 memo: 


Chief Justice Marshall, in Marbury v. Madison, grounded the Federal Judiciary’s authority to exercise judicial review and interpret the Constitution on the necessity to do so in the course of carrying out the judicial function of deciding cases. As Marshall explained, “[t]hose who apply the rule to particular cases, must of necessity expound and interpret that rule.” 


Moreover, in ruling that state taxpayers lacked standing to challenge a state franchise tax credit, Roberts emphasizes the limited role of the judiciary in our system of separated powers:

Determining that a matter before the federal courts is a proper case or controversy under Article III therefore assumes particular importance in ensuring that the Federal Judiciary respects “ ’the proper–and properly limited–role of the courts in a democratic society.’ ” If a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so.  This Court has recognized that the case-or-controversy limitation is crucial in maintaining the “ ’tripartite allocation of power’ ” set forth in the Constitution.  [citations omitted]

Tags: Whelan


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