The Volokh Conspiracy

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Justice Sotomayor Needs To Re-Read Marbury v. Madison

No, Marbury did not say that "the Supreme Court is the last word on what the Constitution means."


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 MeyerPierceGriswold, 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.

NEXT: Abortion, Marbury v. Madison, and What's "Written in the Constitution"

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  1. Just wail until Kamela Toe is a Justice with Sotomayor and the other one, Kagen.

  2. Josh Blackman needs to re-read when Marbury v. Madison was decided.

    1. We probably should all defer to the blackman kid's vast experience with balderdash.

    2. And what it says:

      It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

      So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

      If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
      It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.

      Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.

      1. "...did we give up when the Germans bombed Pearl Harbor?"

  3. If you need to know how much a crackpot blackman is, it's that he calls the rule of law and the supremacy of our constitution "judicial supremacy". I weep for his students and our country that will have to deal with them.

    1. "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. "

      That is an assertion of "judicial supremacy" from Sotomayor.

      1. The buck has to stop somewhere. Something has to be supreme. Why not pick the thing that already has the word right there in its name?

        Whether the precedents are killed off or not, the federal courts will never be done with this issue. Like, ever.

    2. You realize his students are already at what is arguably the worst law school in the entire united states? The sad reality is that despite being a tremendous hack, Blackman can't harm them much more than they already harmed themselves by going to STL.

  4. Josh is just so wrong.

    He says:

    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.

    But Marbury v. Madison said what it says with regard to Congressional acts in contravention of the Constitution (the most relevant part of which I quoted elsewhere in this thread) and then McCulloch v. Maryland is a well-known example of striking down state laws in conflict with the Constitution:

    The constitution, therefore, declares, that the constitution itself, and the laws passed in pursuance of its provisions, shall be the supreme law of the land, and shall control all state legislation and state constitutions, which may be incompatible therewith; and it confides to this court the ultimate power of deciding all questions arising under the constitution and laws of the United States. The laws of the United States, then, made in pursuance of the constitution, are to be the supreme law of the land, anything in the laws of any state to the contrary notwithstanding.

    There isn't any daylight between "last word on what the Constitution means" and "ultimate power of deciding all questions arising under the constitution". If anything, McCulloch is more clear and unequivocal than Cooper.

    It would seem Josh is the one trying to cancel Marshall.

    (Also weird that he seems really upset that Cooper v. Aaron said the states can't just thumb their nose at Brown v. Board of Education. But that's something for another day.)

    1. Clarification: The McCulloch quote is from winning counsel's argument, the substance of which was accepted and adopted by the unanimous Court in Justice Marshall's opinion (striking down a state statute as unconstitutional and void, i.e., exercising ultimate power to tell states what the Constitution allows/requires roughly 140 years before Cooper).

      The cancel culture coming for Marshall and its name be Josh.

  5. " Justice Sotomayor Needs To Re-Read Marbury v. Madison "

    So sayeth the Sage of South Texas . . . to a justice of the United States Supreme Court.

    This blog has become . . . ah, complete that sentence however you like.

    Carry on, clingers.

  6. Is Professor Blackman kvetching that Cooper v. Aaron was wrongly decided? Does he claim that Brown v. Board of Education should be revisited?

    1. That's certainly the impression he gives.

      And he does so while misrepresenting over 100 years of jurisprudence in some quest to say, apparently, the Supreme Court cannot tell states what the Constitution requires them to do. I thought Josh was weird. This was just bonkers.

    2. In the paper he links in the post ("irrepressible myths") he basically argues that no Supreme Court ruling is binding if the people don't accept it. That people accept this myth of judicial supremacy and rulings like Brown because "good citizens" consider them "virtuous" rulings. And that in cases like Dred Scott where they don't, nobody accepts the ruling and it's not binding.

      It also includes a long section on one of Josh's favorite technicalities, that laws are not "struck down" and so on...

    3. Brown was not accepted in much of the country when Cooper was decided. I am old enough to remember calls for massive resistance to desegregation.

  7. Yeah Sotomayor, nothing in that ole Constitution about religion!

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