In trying to establish the legitimacy of resistance to unconstitutional Supreme Court decisions, it is first necessary to show that the very notion of an “unconstitutional Supreme Court decision” is not oxymoronic. And in this effort, it is crucial that we resist buying into the progressive-era version of the Marbury case as a politically driven exercise in judicial supremacy. We need to get Marbury right, because Marbury is—and will remain—the foundational precedent for judicial review of acts of Congress, as it is the first case in which the Court invalidated such an act in a fully reasoned, unanimous opinion. This means that Marbury is the best indicator of the true meaning and scope of judicial review and judicial power in our constitutional framework, as that framework was understood in the early American republic.
If Marbury is thought to stand for final, ultimate and conclusive judicial authority in all constitutional cases, as the proponents of judicial supremacy claim, then judicial supremacy has been with us from the very beginning of the republic, and the notion of an unconstitutional Supreme Court decision will indeed seem self-contradictory. This means that the Court must have been correct in 1958 when it used Marbury to support its declaration that its own constitutional decisions are the “Supreme Law of the Land,” which in turn means that there is no real distinction between a constitutional provision itself and a judicial interpretation of that same provision.
A fair reading of the Court’s Marbury opinion shows us what judicial review really is and was designed to be in the American constitutional order: an essentially defensive power enabling the weakest branch of government to protect itself against unauthorized intrusions on judicial functions by other agencies of government. Though one may quibble about the Court’s statutory and constitutional construction, Section 13 of the Judiciary Act of 1789, as construed by the Court, clearly granted a type of jurisdiction to the Court that went beyond what had been granted in Article III of the Constitution. Had the Court upheld the Act in spite of the constitutional conflict, it would have laid itself open to an enlarged trial jurisdiction that might have altered its place in the constitutional order. Since it is axiomatic in our system that the authority of legal precedents extends only to subsequent cases that are similar in all relevant respects to the precedent case, it follows that the scope of judicial review is confined to the legally relevant facts and circumstances of Marbury. But according to the modern version of the case, there are no legally relevant facts and circumstances in Marbury, because the Court’s decision was reached on other, non-legal, “political” grounds. Thus the real nature and scope of judicial review is hidden from view.
In sum, so long as the proponents of a judicially controlled constitutional order are allowed to claim the support of Marshall’s Marbury opinion, it will be difficult to make an effective case for resistance to unconstitutional Supreme Court decisions. Indeed, so long as Marbury is viewed as an instance of judicial supremacy, it will be difficult to convince anyone that there is even such a thing as an “unconstitutional Supreme Court decision.”
Robert Lowry Clinton is professor emeritus of political science at Southern Illinois University-Carbondale and author of Marbury v. Madison and Judicial Review (1989).