Or Chief Justice Roberts, actually. In a story in the Chicago Tribune on the chief’s visit yesterday to Northwestern’s law school, reporter Bill Barnhart narrates the gist of Roberts’ remarks there, and then up pops this remark, which can only be called bizarre:
“Roberts’ reverence for [John] Marshall, expressed in the current issue of The Atlantic magazine and in a series about the Supreme Court on public television this week and next, puts him at odds with doctrinaire judicial conservatives.
“For them, Marshall set the court on an invalid and dangerous path when he established the power of the court to overrule laws passed by Congress.”
Just who are these “doctrinaire judicial conservatives” who think that Marbury v. Madison “established” an “invalid” power to overrule acts of Congress? Can Barnhart name even one? Certainly there are none in the federal judiciary, and if I strain my memory I might think of one or two legal academics who reject judicial review root and branch (maybe Lino Graglia on his more curmudgeonly days?). But these unicorns known as “doctrinaire judicial conservatives” are nowhere to be seen in the precincts of power, and Chief Justice Roberts can hardly be worried about being “at odds” with them.
Ironically, there is a very strong and influential current of thought in the legal academy that believes that Marshall made up the power of judicial review out of whole cloth. But it consists almost entirely of liberals, who applaud Marshall for his alleged usurpation because in their view he created the institution on which they rely today for policymaking when they cannot get our democratic institutions to comply with their wishes. And as I remarked the other evening, it is this false history that was purveyed, without a dissenting view aired, in the PBS series on the Court in which Roberts (foolishly, in my opinion) participated.
Barnhart’s aside seems really to be about a familiar project of the media—known as “the Greenhouse effect” for Linda of the Times—in which reporters who cover the Court flatter new justices for their “growth,” their “courage” in standing up for the Court’s integrity against the opponents of the expansive use of judicial power. Good heavens, we have to save the new guy from the clutches of Nino Scalia!! In that cause, making up naiads and dryads who revile the legacy of John Marshall is a legitimate tactic.