The Volokh Conspiracy
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During oral argument in Dobbs, Justice Breyer implored everyone to re-read Casey. The former law professor should give Justice Sotomayor another reading assignment.
Justice Sotomayor was trying to make the point that many of the Court's decisions are not premised on the written Constitution. (Ilya wrote on this point). Sotomayor identifies Marbury as an example of such a case.
JUSTICE SOTOMAYOR: Counsel, there's so much that's not in the Constitution, including the fact that we have the last word. Marbury versus Madison. There is not anything in the Constitution that says that the Court, the Supreme Court, is the last word on what the Constitution means. It was totally novel at that time. And yet, what the Court did was reason from the structure of the Constitution that that's what was intended.
Huh? Absolutely nothing in Marbury said that the Supreme Court has the "last word on what the Constitution means." Nothing. That bold assertion of judicial supremacy would not be raised until Cooper v. Aaron. Indeed, one of the irrepressible myths from Cooper was that Chief Justice Marshall asserted this principle in 1805. Balderdash.
And to continue the argument, Cooper was not premised on the "structure of the Constitution." The Court merely asserted the power to bind everyone, everywhere, as a matter of ipse dixit. Cooper was consistent with the mode of judicial creativity that would mark the Warren Court.
Next, Justice Sotomayor tried to analogize Marbury to substantive due process decisions like Meyer, Pierce, Griswold, Loving, and Obergefell:
And, here, in Casey and in Roe, the Court said there is inherent in our structure that there are certain personal decisions that belong to individuals and the states can't intrude on them. We've recognized them in terms of the religion parents will teach their children. We've recognized it in --in their ability to educate at home if they choose. They just have to educate them. We have recognized that sense of privacy in people's choices about whether to use contraception or not. We've recognized it in their right to choose who they're going to marry.
I fear none of those things are written in the Constitution. They have all, like Marbury versus Madison, been discerned from the structure of the Constitution.
Huh? Marbury was based on a fairly simple textualist argument. The Constitution allows Congress to modify the Supreme Court's appellate jurisdiction, but does not afford Congress a similar power over the original jurisdiction. Therefore, Congress could not expand the Court's original jurisdiction to include the writ of mandamus. I think there are valid criticisms of this case–did the Judiciary Act of 1789 actually expand the original jurisdiction?–but I do not understand how Marbury can be compared to a case like Obergefell.
I realize that the current movement is to cancel John Marshall, and blot out his memory from every edifice of the legal establishment. But at a minimum, we should understand what Marshall did, and did not, do.
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