The Exception That Defines the Rule: Marshall's Marbury Strategy and the Development of Supreme Court Doctrine

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In this Subject: History ,&nbsp; Law
By this author: Lemieux S.E.

Author: Lemieux S.E.

Source: Journal of Supreme Court History, Volume 28, Number 2, July 2003 , pp. 197-211(15)

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Abstract:

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 Constitution² 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.

Document Type: Research article

DOI: http://dx.doi.org/10.1111/1540-5818.00063

Publication date: 2003-07-01