Roger Pilon’s latest Cato post starts with a cliché and then builds to a strawman. The cliché is that when someone whom you have criticized responds to you, it is proof that you have “hit a nerve.” The strawman is that I supposedly deny that “we’ve been far better served by having than by not having an independent judiciary, as a look around the world will attest.”
But I should not leave the impression that there is nothing more to his post than that. He also offers an odd historical interpretation.
In truth, [Marbury] was a bold assertion by the Court, grounded in the text of the Constitution, of having the power to declare its own power limited by the Constitution, thereby implying that the political branches were similarly limited. And that is the principle that explains why we enjoyed such freedom as we did during our first seven decades. It was not from “judicial restraint” – from judicial deference to the political branches, as Ponnuru would have it – but from respect for constitutional limits on the power of each of the branches, as secured by the Court (emphasis in original).
I’ll leave aside the misdescription of my views. Pilon’s claim is that the Court’s articulation of the binding nature of constitutional limits in Marbury is what made the country free (to the extent it was) in our first seven decades under the Constitution. That absurd statement is a fine, if hyperbolic, expression of the ahistorical view I was criticizing.
Update: In a mercifully brief follow-up, Pilon asks me to expand on my remark that one of the costs of the mistaken view of Supreme Court history that he perpetuates is that it biases people’s reactions to proposals to reduce judicial power. I have in mind the sort of thing discussed here.