WI: No Marbury v. Madison?

In 1803, the landmark Supreme Court case Marbury v. Madison more or less established the power of judicial review in US law. Nowhere in the Constitution is the Supreme Court given this power, but it has since been enormously influential.

What if it never happens, or, perhaps less probably, rules in favor of Marbury? Would Chief Justice John Marshall find another opportunity to strengthen the Court?

Thoughts?
 
Well, isn't the whole balance between the three branches of government never established then? The Supreme Court's rulings are pretty much the only way that the judicial branch can exert influence on the policies and decisions of the executive and legislative branches.

So how will constitutionality of laws be established then? Votes from state legislatures or something? That sounds really tricky since Congress can't do it (it's the one writing the laws) and I doubt it'd go to the president.
 
Well, isn't the whole balance between the three branches of government never established then? The Supreme Court's rulings are pretty much the only way that the judicial branch can exert influence on the policies and decisions of the executive and legislative branches.

So how will constitutionality of laws be established then? Votes from state legislatures or something? That sounds really tricky since Congress can't do it (it's the one writing the laws) and I doubt it'd go to the president.
If judicial review doesn't get established (which is probably unlikely, given the fact that John Marshall is likely to be a Supreme Court justice either way), then the US will de facto function just like any other state with a notion of legislative sovereignty, like Great Britain for example.
 
Actually, I think the easiest way to do this would be for John Marshall to not get nominated to the Supreme Court in the first place. Until then, he was just a normal Federalist politician; if Adams doesn't nominate him, he won't get anywhere close to the Court. I don't think many other justices would dare issue such a clear challenge to the newly-triumphant Republican majority, so I think you'd be clear from there.
 
So how will constitutionality of laws be established then? Votes from state legislatures or something? That sounds really tricky since Congress can't do it (it's the one writing the laws) and I doubt it'd go to the president.

President gets it by default, since he or she has veto authority; in fact, many (most?) early vetoes (prior to about Jackson, IIRC) were on the basis of constitutionality. One striking thing about the Marbury v. Madison case, though, is that it gave Jefferson everything he said he wanted--viz.,

Thomas Jefferson to Madison said:
I like the [veto] given to the executive...though I should have liked it better had the Judiciary...[been] invested with a similar and separate power.

Of course, that was about a decade and a half earlier...
 
...then the US will de facto function just like any other state with a notion of legislative sovereignty, like Great Britain for example.

Which is a scary thought. We've seen what happens when the Supreme Court steps aside in times of crisis and lets the Executive and Legislature rule on their own whims.
It's not pretty.
 
Hmmm, if the Presidency gains this judicial power could we see Congress maintaining more control of its legislative powers vs the Presidency?

Would the US Republic evolve into a more parliamentary system or more likely a semi-presidential system like France?
 
What about, Marshall or some subsequent supreme court does not get away with pretended power of judicial review?

How could Congress best thwart and destroy power of judicial review?

Any congress which can assemble the 2/3 majority to pass a statute over Presidential veto can also assemble the 2/3 majority to convict on impeachment a judge for declaring the law unconstitutional.

There is the famous Chase impeachment for being partisan. Suppose Senate gets the 23 votes for conviction rather than 19 as per OTL. What happens to judicial review?

Or suppose the Radical Republicans, after 1861, impeach Taney and go on to impeach all 7 judges who voted for majority against Dred Scott. Or in reconstruction times.

What would a blatantly political judiciary purge by impeachment power do to judicial review?
 
If judicial review doesn't get established (which is probably unlikely, given the fact that John Marshall is likely to be a Supreme Court justice either way), then the US will de facto function just like any other state with a notion of legislative sovereignty, like Great Britain for example.

I don't know about this. Note that even Jefferson recognized some judicial review; he thought that the Alien & Sedition Acts were unconstitutional despite the fact that they were passed by a legislature, no?
 
Jefferson later saw judicial review as an anti-democratic development, since the people (Jefferson's deity) had no recourse. The Founders could easily have ( and probably should have) placed a 2/3 majority veto of the SC in the hands of Congress, thereby establish true parity between the three branches
 
I don't know about this. Note that even Jefferson recognized some judicial review; he thought that the Alien & Sedition Acts were unconstitutional despite the fact that they were passed by a legislature, no?
Yes, he did, and he advocated the states nullifying it. Of course, that might've just been because the judiciary was controlled by Federalists.
 
Jefferson later saw judicial review as an anti-democratic development, since the people (Jefferson's deity) had no recourse. The Founders could easily have ( and probably should have) placed a 2/3 majority veto of the SC in the hands of Congress, thereby establish true parity between the three branches

Is that parity? If you actually think that Congress cannot pass laws that violate the Constitution, then you need a Supreme Court, no?
 
Absolutely, Congress can, the Executive branch can, and so can the Supremes. All are populated by individuals with their own biases, political views and concepts of the Constitution. Before 1900 the SC was not considered the sole arbiter of what the Constitution meant. Certainly Lincoln did not believe that and said so regarding the Dred Scott decision. Post 1930 it began to be accepted as dogma that the SC's position was final. The concept that a 5-4 majority of appointed officials who never have to answer or justify their position to the People as a whole is dangerously close to an oligarchy, not a democratic republic. SC decisions like Plessy v. Fergesson justified segregation laws, and more recently, the Kelo decision which allows a city or state government to condemn your property so that it can maximize tax revenues. Neither IMHO were good interpretations of the sense of the Constituon. Kelo alone would have had the Founders reaching for their muskets and shouting "Tyranny." The SC justices are fallible humans just like Congressmen and Presidents.Thus the need for a check on their power.

The genius of the original Founders vision was that they knew from history and their own experience that rulers tended to become tyrants unless thery were checked. Hence, the truly brilliant division of powers between the three branches. What they did not provide was a check on the power on the Supreme Court, which was my point. As a thought experiment, and not knowing your politics, think about a SC with 9 Scalias or 9 Ruth Ginsburgs. Both cases are unlikely, but not impossible. In either case a large number of citizens would feel that their concept of American governance was being trampled upon. If the people don't like what a President or Congress does they can change them. Some kind of check on the absolute power of the SC lying in the hands of the people, or their representatives would prevent that from ever occuring.
 
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Post 1930 it began to be accepted as dogma that the SC's position was final

Post-1930? Slaughterhouse and the other cases were all way before it, and the court has spent decades manipulating leigslation.

And of course Plessey was bad, but we also got Brown. So, tradeoffs.

I think you are really overstating how unchecked the Supreme Court is from politics; I'd check out some of Barry Friedman's works, (one of which has a website: http://www.thewillofthepeople.org), which discuss how the Supreme Court crafted, and crafts, its opinions to make them politically palpable. But think about how often the Court has cut back on broad rulings in response to public blowback; it scaled back Miranda rights, it delayed integration after the opposition to Brown... hell, a justice resigned so that FDR could get his New Deal legislation packed.
 
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I don't totally disagree, but why wouldn't a direct political check on the SC be a good idea, say 2/3 of Congress plus the President to overrule a wrongheaded SC decision? The SC does not change prior decisions easily or quickly in most cases no matter how bad the original decision was. Several generations of African Americans suffered because of Plessey. God knows how long it will take to reverse Kelo If I lost my business, my home, or my property because some politically connected developer got the the City Council to give approval on the basis of Kelo, I would have no real recourse in the courts or anywhere else. This is not theoretical. It was a terrible decision and contrary to prior understandings of the takings clause.
 
I always thought that the check to the Supreme Court was the ability to amend the Constitution. Admittedly a pretty high bar with the requirement for 2/3 of both houses and ¾ of the states, but it is done on occasion. For example, I believe the 16th Amendment which allowed the income tax was specifically instituted to override a Supreme Court case.
 
I always thought that the check to the Supreme Court was the ability to amend the Constitution. Admittedly a pretty high bar with the requirement for 2/3 of both houses and ¾ of the states, but it is done on occasion. For example, I believe the 16th Amendment which allowed the income tax was specifically instituted to override a Supreme Court case.

Yes, and the 13th, 14th and 15th Amendments were passed in part to eliminate prior SC rulings regarding slavery, state's rights and the citizenship of slaves. As you say, that's not much of a check on the SC, since an amendment is extremely difficult to achieve, as it should be. The problem lies with some justices who seem to think that its their job to be a permanent standing Constitutional Convention. They're the kind who speak of "a living breathing Constitution" which basically means that they make it up as they go along.
 
Damn activist judges, making rulings I disagree with! By "make it up as they go along" you mean they do their job, but feel it should be represented more negatively than that.
 
I always thought that the check to the Supreme Court was the ability to amend the Constitution. Admittedly a pretty high bar with the requirement for 2/3 of both houses and ¾ of the states, but it is done on occasion. For example, I believe the 16th Amendment which allowed the income tax was specifically instituted to override a Supreme Court case.

There are also legal workarounds as well. For example, in the Kelo case, it would be possible to (or at least a lot of places did) pass laws that basically amount to "we won't do that". Nothing says that the government has to use some power that the Constitution grants it, after all, or that it has to grant only the rights explicitly allowed for. An even better example of that is how Congress usually doesn't try to mess with state voting laws (vis-a-vis themselves), even though they are explicitly allowed to do so by I.4.1.

EDIT: Or of course you have the Jackson/Lincoln approach: Just ignore the court altogether. Not to be particularly encouraged, but sometimes...
 
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Claudius: Let me offer you a hypothetical. The Court decides in Plessey that segregation is unconstitutional, in the 19th century. What happens next?
 
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