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• (January 12, 2023, 01:18:11 AM)

[reimero]

I'm taking a class on the history of the US Supreme Court and got a take-home midterm with a very interesting question.

Full disclosure: It's a take-home exam, and all resources are fair game as long as the final result is original.
Full disclosure 2: I've already answered the question, and will be handing it in this evening.  I'm just curious to see what other people think.  It won't actually change my test answer.

The question is this:
Was John Marshall's decision in Marbury vs. Madison which gave the Supreme Court the power of judicial review an example of judicial activism?

Some points to consider:

• The Constitution does not explicitly allow for judicial review in as many words, but does not deny it either.
• The Constitution places the authority for the federal judiciary in the hands of the Supreme Court.
• The Constitution is the supreme law of the land.
• At the time of the decision, the counter-argument espoused by Thomas Jefferson was that it was the province of each branch of government to determine for itself how the Constitution pertains to that particular branch, that is, SCOTUS only had Constitutional authority over the judiciary.

My abbreviated answer is below (highlight to reveal):


I found it was not a case of judicial activism because the resolution of conflict of laws has always been part of the traditional duties of the judiciary.  The Constitution is unambiguous in stating its supremacy and in stating the authority of the Supreme Court over the judiciary, and says in Article VI that all judges are beholden to it.  Thus, Constitutionally, any law found in conflict with the Constitution cannot be upheld by any federal judge.

[Joe Sixpack]

I'd probably go so far as to say that "Judicial Activism" and "Supreme Court" are mutually exclusive. 
The Supreme Court's purpose is to interpret constitutional questions, i.e. whatever they say the Constitution says, that's what it says, at least legally speaking.  If you were going to call this Judicial Activism, you could probably call any Supreme Court decision the same.  It's their purpose to decide this kind of question.

[reimero]

I'd probably go so far as to say that "Judicial Activism" and "Supreme Court" are mutually exclusive. 
The Supreme Court's purpose is to interpret constitutional questions, i.e. whatever they say the Constitution says, that's what it says, at least legally speaking.  If you were going to call this Judicial Activism, you could probably call any Supreme Court decision the same.  It's their purpose to decide this kind of question.

Normally, I'd agree with you, but there have been several occasions in which the Supreme Court has overstepped the bounds explicit in the Constitution.  A few examples:
* In the Dred Scott case, the Supreme Court ruled that Congress did not have the power to regulate the affairs of territories, then went on to declare that blacks could not be U.S. citizens (never mind that blacks had been U.S. citizens from day 1, in some areas.)  (Note: Dred Scott is generally regarded as the single worst decision ever rendered by the Supreme Court, not just because it upheld slavery, but the legal basis upon which it was decided was terribly flimsy, and was overtly decided not because of what the law said, but because of what was politically desirable.  There is overwhelming evidence that President-elect Martin Van Buren exercised a great deal of undue influence in this case.)
* In Brown v. Board of Education, the Supreme Court allowed the federal government to interfere in what was clearly an internal state matter, according to the Constitution.  It was an activist decision because the Supreme Court went outside the bounds of their Constitutional jurisdiction, however, it was also arguably necessary because it was blatant that Mississippi had no intention of providing equal protection under the law.  I feel it was the correct decision, but it was also an activist decision rather than a constructionist one.
* There was a recent case in which the Supreme Court denied Californians the right to cultivate their own marijuana for medical purposes under CA state law because marijuana is a "controlled substance."  The federal government derives the right to control substances based on the Constitution's "interstate commerce" clause.  Thus, even though this particular application is neither interstate nor commercial, the Supreme Court allowed the commerce clause to apply.

In general, though, conflict of laws is central to the mission of the Supreme Court.

[Joe Sixpack]

Not saying they can't get it wrong, but legally speaking, the constitution says what they say it says.  And if they change their mind later, that's still true.