As a young lawyer in the Reagan administration’s Department of Justice in 1981, John Roberts wrote a long memorandum defending the constitutionality of bills that would “divest the Supreme Court (and, in most instances, lower federal courts as well) of jurisdiction to hear certain types of controversies, ranging from school prayer and desegregation cases to abortion cases.” To be sure, Roberts states in that memorandum that it “is prepared from a standpoint of advocacy of congressional power over the Supreme Court’s appellate jurisdiction” and “does not purport to be an objective review of the issue.” Nonetheless, his analysis in this passage is penetrating:
It is argued, however, that divesting the Supreme Court of jurisdiction over a particular class of cases would undermine the constitutional role of the Court as the ultimate arbiter of constitutional questions. The Cons[t]itution, however, does not accord such a role to the Court. The authority of the Court to interpret the Constitution derives from the necessity of its doing so in the course of discharging its judicial responsibility to decide those cases and controversies properly presented to it. As put in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803):
“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution; or conformably to the Constitu[t]ion, disregarding the law; the court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty. . . . In some cases, then, the Constitution must be looked into by the judges.” (Emphasis supplied).
If the necessity of interpreting the Constitution is removed, as it would be if the Court were divested of jurisdiction, the basis for the Court’s role as final arbiter of the Constitution is removed. [Underlining in original.]
In sharp contrast, in his separate opinion today in Whole Woman’s Health v. Jackson, the Chief Justice instead maintains that “the role of the Supreme Court in our constitutional system … is at stake” if it is not able to engage in pre-enforcement review of a state law. And when, in support of that claim, he quotes Marbury’s statement that “[i]t is emphatically the province and duty of the judicial department to say what the law is,” he strips that statement from the context that shows that that duty arises only (as he puts it in his 1981 memo) “in the course of discharging its judicial responsibility to decide those cases and controversies properly presented to it.”