Most commentators on both sides of the political landscape would acknowledge the fact of judicial activism in our Federal Courts. The question is: How did we arrive where we are? How did our Federal Courts, especially the Supreme Court of the United States (SCOTUS for short) take over the authority of the Legislative and Executive Branches of our Federal Government?

The foundation for judicial activism began with Marbury v. Madison in 1803, but the history goes back even further. The Judiciary Acts of 1789 and 1801 set the stage for the players to craft what today would be called a political soap opera.

The Judiciary Act of 1801 was introduced before the presidential election of 1800, but wasn’t passed until after the election, which ultimately was determined in the House of Representatives. President John Adams signed the bill on February 13, 1801, three weeks before the end of his term in office. There were other political maneuverings on the part of President Adams in those last three weeks. He submitted sixteen new federal judgeships who were confirmed by the Federalist controlled Congress at the last minute. Some of those judges became participants of Marbury v. Madison above.

On March 8, 1802, the newly elected Republican Congress repealed the Judiciary Act of 1801. It was replaced by the Judiciary Act of 1802 (April 29, 1802) which abolished the sixteen new judgeships.

The ruling in Marbury v. Madison was the brainchild of Chief Justice John Marshall. At the time of the ruling, it was not set out as a precedent, but more as a slap at President Jefferson (a long time political rival of Marshall) in denying an opportunity for him to rebuff a Federalist controlled Supreme Court.

As previously stated, sixteen new judgeships were created by Adams and confirmed by the lame duck Senate in the eleventh hour of his presidency. Marshall who was then Secretary of State was not able to actually deliver some of the commissions of office to some of those people. In the succession of administrations, Marshall’s replacement, James Madison, refused to deliver the commissions per Jefferson’s instructions. William Marbury, along with others, was one who didn’t receive his commission and subsequently sued in federal court seeking an order directing Madison to deliver.

Marshall’s dilemma was an order for delivery of the commisions, which Jefferson would have Madison ignore, weakening the Court’s authority as well as demonstrating his protection of Federalist jurists, or something out of the ordinary. The decision was to announce a “property right to the office” to which those people had been nominated and confirmed. He did not issue an order, specifically stating that the Court, under the Constitution had no right to do so. But, he said the Court had a responsibility to set aside acts of Congress that violate unwritten principles in the Constitution.

The Federalist party had lost the Presidency, and Congress, but they won the political war with the birth of the doctrine of “Judicial Review”.

Jefferson wrote in a letter to William Jarvis in 1820,

“To consider the judges as the ultimate arbiters of all constitutional question is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”

and again the same letter,

“It (meaning the Constitution) has more wisely made all the departments co-equal and co-sovereign within themselves.”

What took place was a “counter-revolution” as Mark Levin called it. He states this in his book, Men In Black,

“For 200 years, the elected branches have largely acquiesced to the judiciary’s tyranny.”

In Schweikart and Allen’s book, A Patriot’s History of the United States the following is stated:

“There is nothing in the U.S. Constitution that grants the Supreme Court this great power, and the fact that we accept it today as a given has grown from the precedent of John Marshall’s landmark decision”

Both of the above books are well worth their price, and Levin’s book is outstanding. Much of what we wrote today was gleaned from Levin’s book. As one who has read over 100 pages of Men In Black, we disagree with Dahlia Lithwick in her vitriolic article here. Mark Levin has written a rebuttal which can be found here.

Finally today, John Plecnik who we quoted last week, found here, has written, an Open Letter to Congress: Impeach Activist, Rock Star Judges.

While we agree with Mr. Plecnik, Congress has the constitutional right and authority to curtail judicial activism, it will take much more of what we wrote about here, in order for that to happen.

This entry was posted on Saturday, April 9th, 2005 at 3:13 pm and is filed under Saturday Evening Judicial Review Post. You can follow any responses to this entry through the RSS 2.0 feed. Responses are currently closed, but you can trackback from your own site.

Tags: Supreme Court, Marbury v. Madison, Judicial Activism, Judicial Review, Judicial Tyranny