Premium
The Exception That Defines the Rule: Marshall's Marbury Strategy and the Development of Supreme Court Doctrine
Author(s) -
Lemieux Scott E.
Publication year - 2003
Publication title -
journal of supreme court history
Language(s) - English
Resource type - Journals
eISSN - 1540-5818
pISSN - 1059-4329
DOI - 10.1111/1540-5818.00063
Subject(s) - petitioner , supreme court , law , doctrine , economic justice , jurisprudence , judicial review , power (physics) , political science , legislation , order (exchange) , sociology , law and economics , economics , physics , quantum mechanics , finance
Analyzing the development of the European Court of Justice (ECJ), Laurence Helfer and Anne‐Marie Slaughter argue that in the early years of the court, ECJ justices “borrowed a leaf from Chief Justice John Marshall's book, edging principles forward while deciding for those most likely to oppose them in practice.” 1 The most famous example of this paradox in Marshall's jurisprudence can be found, of course, in his seminal opinion in Marbury v. Madison. While asserting the right of the judicial branch to nullify legislation it deemed unconstitutional, Marshall used an implausible construction of the jurisdictional powers given to the Supreme Court in Article III of the Constitution 2 to deny the petitioner the remedy to which Marshall claimed he was otherwise entitled. While Marbury is generally portrayed as the fountainhead of judicial review in the United States (and therefore in liberal democracies in general), as Mark Graber points out, the decision was in fact a “strategic judicial retreat…in the face of threats by executive…power.” 3 In order to assert the power of judicial review, in other words, Marshall had to refrain from applying it in the case in question.