Thomas Jefferson was understandably, and correctly outraged by the Marbury v. Madison decision, in which Chief Justice John Marshall wrote, “It is emphatically the duty of the Judicial Department to say what the law is.” Some of Jefferson’s most scathing denunciations of an activist judiciary were in connection with this disastrous ruling. Jefferson recognized immediately that Marbury shifted the tectonic plates in American politics. It was a seismic shift in the balance of powers between what are supposed to be three co-equal branches of government. In Jefferson’s eyes, as well as in the eyes of this author, the assertion of exclusive judicial review was enormously dangerous because it made the Court not an equal branch of government, but the supreme branch of government.
In an 1804 letter to Abigail Adams, Jefferson wrote, “The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”
The closer he got to the end of his life (he died on July 4, 1826, the 50th anniversary of the signing of the Declaration of Independence), the more agitated Jefferson got about the aggressive assertion of supreme power by the judiciary.
In 1820, Jefferson wrote William Jarvis, “You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy ... The Constitution has erected no such single tribunal.”
To Charles Hammond in 1821 he wrote, “The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.”
Jefferson was right. All of the judicial activism against which we rail today grew and flowered from this poisonous root. Jefferson knew trouble when he saw it, and Marbury was trouble in spades. “The great object of my fear,” he wrote in 1823, “is the Federal Judiciary.”
Justice Marshall was dead wrong when he wrote that the duty of the Supreme Court is to say what the law is. According to the Constitution, it is emphatically the duty of Congress, not the Court or the Executive, to say what the law is. The very first words of the Constitution after the preamble prove that Marshall was wrong. It reads, in Article I, Section 1, “All legislative Powers herein granted shall be vested in a Congress of the United States.” (Emphasis mine.)
“All” means “all,” as in every last little bit. All legislative power, every last scintilla of it, is vested in Congress. All of it. This means that the Supreme Court has zero legislative authority of any kind. It cannot make law, it can only apply the law to the plaintiffs and defendants who appear before it, and issue “rulings” or “opinions” that apply to the plaintiffs before them and no one else.
When Justice Oliver Wendell Holmes, Jr. said in 1917 that "judges do and must legislate,” he said something flatly and flagrantly contrary to the very Constitution he had sworn to uphold.
The Court has no legislative authority or power whatsoever. None, zero, zip, nada. It cannot make law, it cannot amend law, it cannot strike down law. It has no power to make law in any way. It is flatly impossible, therefore, for a Supreme Court ruling to be “the law of the land.”
Thus Roe v. Wade is most emphatically not “the law of the land,” no matter what even misguided Republican lawmakers say. Nor is Obergefell, which imposed sodomy-based marriage on the entire country, “the law of the land.” It, like Roe, is a “ruling” or an “opinion,” but it is most emphatically and decidedly not a “law.” It can’t be because the Court under our Constitution has no law-making authority of any kind, period.
It is striking that even today the Court itself calls its decisions “opinions.” The Court itself doesn’t call them “rulings” or “laws” but “opinions.” A Supreme Court “opinion” is an “opinion.” It is not a “law.” A Supreme Court “ruling” is a “ruling.” It is not a “law.” A Supreme Court “precedent” is a “precedent.” It is not a “law.”
Jefferson warned of the malevolent tendency of Court decisions to acquire the force of law through the meekness and supine compliance of Congress and the American people. Of the Court, he said, “Their decisions become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance.”
By arrogating to the Court a power of action specifically denied to it by the Constitution, the power of making or unmaking legislation, Justice Marshall set a course which led us to where we are today and which will lead us into complete political oblivion unless it is corrected.
And so, thanks to this clever but activist Supreme Court justice, the concept of “judicial review” was hammered into our jurisprudence from a place outside the Constitution altogether. The concept has come to mean, in practice, that nobody knows what the law is until the Court has ruled on it.
We’ll come back to this a bit later, but the point to grasp now is that the concept of “judicial review” – it’s not a law until the Supreme Court says it is – is wholly, completely and entirely without constitutional justification. So what happens when two branches of government disagree about the constitutionality of a particular law? As Jefferson pointed out, the Court has the authority to decide for itself constitutional matters, in its own sphere of operation, that is, when it is settling “cases and controversies,” but not for any other branch of government. Each branch has authority in its own domain to decide constitutional matters for itself. That’s why they are called “co-equal” branches, none superior to another.
The Court’s role is not to “review” law, but apply it
The Court’s role is emphatically not to “review” law, but to apply it. In this, the justices function just like umpires do in baseball or referees do in football and basketball. The job of an umpire is not to evaluate or change the rules of baseball but to apply them fairly. He might not like a rule that the rules committee has adopted, but he has no authority to change that rule or to selectively apply it.
Amy Coney Barrett understands this. Do the Democrats in the Senate?
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