There seems to be a broad misunderstanding in this thread about the powers of the Supreme Court and what it can do. The essential function of the Supreme Court is to interpret the Constitution and adjudicate challenges to and conflicts with statute law, case law, regulations, and executive orders within the framework of the Constitution including amendments thereof. It has no authority to strike down amendments that have been ratified or adopted or otherwise alter the Constitution so the question of the o.p. of a claimant challenging the validity of the “Reconstruction Amendments” in court is a legally nonsensical question even if there is some question as to the ‘legitimacy’ of the ratification process by one or more states. If the process of ratification was irregular it should have been challenged at that time because once ratification is complete and the amendment is adopted as a part of the Constitution there are no takebacks or process for challenge, and the courts, including the Supreme Court, have no authority to do so.
The Supreme Court has had to rule on issues beyond the textual scope of the Constitution and does so based upon the “penumbra” (implied rights) as explained in the decision of Griswold v. Connecticut, often because of technological developments, changes in public mores and standards, or differences in the interpretation of social compacts such as marriage. Many of these decisions can be legitimately questioned because their scope is not only beyond the text of the Constitution but also not covered in the writings of the authors (Federalist Papers and correspondence) and so the extension of ‘Constitutionality’ is subject to interpretation of what represents the intent of ‘maximal liberty’ of the Constitutional framework. The ‘Originalist’ line of legal philosophy argues that any extension beyond what is in the text is not legitimate by default, and an extreme line of that thinking is that amendments beyond the Bill of Rights (aside from the administrative ones such as XII, XVII, XX, et cetera, which are generally not held to criticism) should be nullified because they do not fall within the original intent of the authors but of course many of those men were slaveholders who vigorously sought to protect that institution, most of them had little if any regard for the rights of women, and virtually all of them believed in the moral and ethnic superiority of white Europeans over the ‘savage’ natives, Africans (even freedmen), or ‘Celestials’, so I think we can take such a view with a jaundiced eye regarding their supposed egalitarianism and support for ‘democracy’ as strictly limited to the class of landed white men.
I think the powers of the Supreme Court have changed over time, often granted by the court to itself, and any assertion as to what they can clearly do or not do at the fringes of precedent is wishful thinking. Especially in 2025.
But I’ll let the constitutional scholars hash this one out.
The Constitution is what the Supreme Court says it is. Period. Pretending that what the Court says and how the Court decides doesn’t change with the times is a waste of breath. Every observer knows that and has since the 19th century. Obligatory quote: “[N]o matter whether th’ constitution follows th’ flag or not, th’ Supreme Court follows th’ iliction returns.”
I’ve argued that the entire history of the Court since FDR comprises a systematic reversal of everything the Court ruled earlier. That’s only accelerated in recent years, with the Court reversing that set of reversals. The reasoning the majority uses also contradicts the way earlier Courts conducted themselves.
No American laws covered secession and armed rebellions. After the fact, Congress - supported by the Courts - flat out invented retroactive laws to legitimatize their actions. Then and later everybody just changed the subject whenever questions arose. Legalized illegality. Small wonder why some people felt they could challenge these decisions in later eras.
Marbury v. Madison wasn’t so much the Supreme Court ‘granting’ itself powers of judicial review than explicitly clarifying that the Constitution was the source of all federal authority and law (“The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;…”). Article III, which establishes the Supreme Court, doesn’t actually specify anything about its composition or procedures beyond stating,
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.
The authority for judicial review follows from the explicit and plenary authority of appellate jurisdiction assigned in Section 2 (and technically original jurisdiction as well, although except for impeachments the Supreme Court has almost never operated as a trial court):
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
This is a change only insofar as it clarifies the role of the court. It doesn’t assign itself new powers, and give thatches warless than fifteen years after the drafting and adoption of the Constitution is hardly “changed over time”.
That is certainly true. “Constitutionality” is whatever the Supreme Court has interpreted as it as being, and they’ve made some pretty bad decisions (and reversed good ones) but whatever the Supreme Court is saying today is how the law is interpreted. The notion of infallibility or impartiality of the Supreme Court has been given lie on a number of occasions throughout history, and as much as people revere the Constitution as a founding document of nascent (sort-of) democracy or the Supreme Court as an institution, it suffers from the same weakness of any governance; the best that can be said of it is it lays out some basic principles with a procedural resistance to arbitrary change but it certainly isn’t able to ‘protect democracy’ against bad faith interpretations of ill-intended laws.
And, as you note, this isn’t just in the service of one political party; ‘both sides’ have increased authority of the executive and shielded the legislature from culpability for bad acts when it suited them. (And I would argue this goes bad much further than just FDR.) But the Supreme Court has no authority to rule on flatly striking an amendment that has been ratified and adopted, and certainly not just because a state decided to renege on ratification after the fact; it has to chop away at it by making narrow or obtuse interpretation of laws falling under the authority granted by that amendment, or by expanding the interpretation of a clause or amendment far past what it was obviously intended for i.e. the Interstate Commerce Clause which has been interpreted to allowed the federal government to insert itself into all manner of state-level affairs.
I’d always heard that technically Marbury v. Madison was about that Congress couldn’t arbitrarily change the boundaries of the three branches of government by legislative act in contradiction to what arrangement the constitution spelled out; even if it was an attempt by Congress to actually grant powers to the Supreme Court.
People can differ on what Marbury v Madison meant. Nevertheless, none of the Founders apparently thought that the judicial branch was co-equal with the other two. At the time, the notion that the Court could declare an act of Congress as unconstitutional was unprecedented and therefore extremely controversial. Moreover, Marbury’s case was essentially a political one, as John Adams and Congress were trying to pack the court system with a new set of lower judges at the last moment before Jefferson took office. Marshall split the baby, saying both sides wouldn’t get what they wanted. This established judicial review, which is nowhere in the Constitution, made the judiciary the equal branch now taken for granted, and additionally asserted that amendments rather than legislation were needed to alter the text. Rather sweeping. It may not have been good law, as others later argued, but when you’re inventing a political system some slippage must be expected.
(Parenthetically, Marshall was a Federalist, also appointed by Adams just before he left office. The Federalists were livid at this seeming betrayal. However, Jefferson was an opponent of judicial review, so he was no fan or either the decision or Marshall. Demonstrating the neutrality of the Court while elevating it was a masterstroke.)
Probably true since the Court has said in the past this is a political question outside their jurisdiction. But only probably as the current Court rules by politics rather than precedent. I don’t feel comfortable striking any conceivable issue or outcome at this point.
Well that’s not true. The constitution expressly empowered Congress to call forth a state’s militia to “suppress insurrections”, and the constitution specifically defined the crime of treason.
Ron Chernow, in his doorstop biography of Hamilton, has this to say on p. 299.
Throughout his career, he showed special solicitude for an independent judiciary, which he thought the most important guardian of minority rights but also the weakest of the three branches of government. … In number 78, Hamilton introduced an essential concept, never explicitly mentioned in the Constitution: that the Supreme Court should be able to review and overturn legislation as unconstitutional. At Philadelphia, delegates had concentrated on the question of state versus federal courts, not whether courts could invalidate legislation. … When Hamilton wrote these words, state judges had taken only the first tentative steps in nullifying laws passed by their assemblies.
Federalist 78 was an argument of the necessity for passing the Constitution as written; an intelligent screed but a screed nonetheless. The Federalist Party took its name from these writings, which emphasized the superiority of a federal government. No. 78 was an exercise in positioning the federal government over the states with the constitution - though always expressed as a “limited constitution” for political reasons - as the font from which all power flowed.
That Marbury v Madison roiled the parties and the politicos is evident from its position in history. It codified principles that had been expressed by some people but had previously not been formalized by the government - a mini-constitution in that way. Marshall, beginning 34 years as Chief Justice, laid down a platform of federalism that survived despite the Federalist Party disintegrating. I think that the cited passage underplays the significance of that, and that none of the details truly contradict my brief summary.
So, again, the concept of the Supreme Court having authority to declare a law unconstitutional did not arise solely from the Marbury decision, and you are simply incorrect to say that the government hadn’t previously addressed the issue.
I’d note, too, that the government could have reacted to Marbury by passing a law which amended the jurisdiction of the court. It did not.
Although the modern separation of powers by establishing “co-equal branches of government” is a somewhat modern interpretation it has its origins in Montesquieu, Madison does discuss “the necessary partition of power among the several departments” in Federalist Papers #47 and #51, so the notion was certainly in the minds of at least some of the authors, and Article III makes it clear that the Supreme Court has plenary authority to decide questions of appeal “both as to law and fact” as well as original jurisdiction over the executive branch, i.e. the ability to set aside orders and prosecute actions that they find to be illegal.
“Judicial review”, i.e. determining the applicability of laws, orders, and regulations in terms of their conformance with powers and protections assigned in the Constitution (including amendments) is inherently part and parcel because the authors knew that Congress would almost certainly pass laws that would conflict with prior law or the Constitution, and that presidents would issue orders in conflict with Congress or the Constitution. The founders did not want a ‘common law’ system that was just based on historical precedent and whatever the leader at the time wanted to do and made it clear that the Constitution was the anchoring document for all fundamental interpretation of law (to the extent that some of them didn’t see any value in the Bill of Rights, and a few felt that there shouldn’t even be codified federal laws aside from the Constitution, presumably leaving every judge to somehow intuit intent and create their own procedures, I guess).
I wouldn’t put any amount of money on what this Supreme Court will decide it will or will not do in the future but so far while they’ve certainly taken the tack of casually overthrowing prior court decisions, they haven’t actually extended their authority in any material way and in several instances claimed to not have authority over issues that former Supreme Courts have taken explicit positions on, such as the couts not being able to try or hold accountable a sitting President for crimes committed while engaged in their duties. In essence, the conservative majority has acted to weaken the Supreme Court and hand more power over to the executive rather than expanding their own domain. On what basis the Supreme Court could ever decide that it is in their power to strike a constitutional amendment is unclear and wholly without precedent.
The Judiciary Act explicitly “provided for review by the Supreme Court of final judgments in state courts,” including when they ruled that a law was “repugnant to the constitution” as your cite says.
Nowhere in it that I can find is any indication that the Act in any way allows for or even considers a similar direct review of acts of Congress.
That’s the sole subject I’m addressing. Certainly, the general subject of judicial review was a consideration back to the writing of the constitution. Nevertheless, that general subject is not at issue. Whether the Supreme Court could nullify an Act of Congress was also not an issue in Marbury’s suit. He merely asked for a writ of mandamus. The Judiciary Act did give that particular power to the Court in Section 13.
Nobody expected that the Court would further rule that the Act of Congress in question was unconstitutional. That, as I’ve been saying, was the piece that was unprecedented and indeed revolutionary.
There’s more to it than that. The Supreme Court post-Reconstruction was evidently on a crusade to overturn what they apparently considered federal overreach, and thus ruled against virtually any interpretation of the immunities and privileges clause as contravening state power.
I’m afraid I disagree. @Hari Seldon and I had a discussion on this very point about 5 years ago, and I pointed out that there were, in fact, precedents for judicial review, prior to Marshall CJ being appointed to the Court. In addition to the Privy Council cases, the issue of judicial review had been raised and debated in some of the ratification conventions, particularly in Virginia, where Marshall was an observer. Hamilton and Madison both supported the concept, and prior to Marshall’s appointment, all six of the justices of the Supreme Court had held, individually on circuit, that the the federal Invalid Pensions Act was unconstitutional.