Have people argued that the judicial branch is not co-equal with the executive and legislature?

Lately, I seem to recall having read on the SDMB that some (primarily Republican-aligned) commentators have advanced that argument, but I can’t find a citation for it.

Can this be corroborated?

I’m not sure what you’re asking. If it’s whether there is language in the Constitution or specific legislation making the three co-equal, then the answer is no. The Founders almost certainly intended Congress to be the foremost branch, with the President second, and the Courts a distant third. It’s only through custom and precedence that we now speak of the three branches as equal. The definition of “equal” is nevertheless unclear and has no legal meaning. There are certainly times and occasions where one branch takes precedent over the others and each has powers that the others do not. Each also has checks on the others, but those are also limited and specific.

In short, “equal” is a sentiment, part of the norms of government, rather than a codified property. Anyone can argue what it means to their heart’s consent. Power changes moment by moment in the real world. One branch may back down to another today but stand fast tomorrow. Nothing about equality changes until and unless the whole political culture changes.

Well said Exapno Mapcase. I salute your answer.

Thanks; sorry if I was unclear. What I was asking was, are people actually advancing the argument the judicial branch was intended to be subordinate to the executive and legislative branches (implying that Marbury v. Madison was improperly decided and that the concept of judicial review should be abandoned)?

In 2014, Acting Attorney General Matthew Whitaker said, “The courts are supposed to be the inferior branch of our three branches of government. We have unfortunately off loaded many of our tough public policy issues onto the court and they’ve decided them. Unelected judges are deciding many of the issues of the day. There are so many (bad rulings). I would start with the idea of Marbury v. Madison. That’s probably a good place to start and the way it’s looked at the Supreme Court as the final arbiter of constitutional issues. We’ll move forward from there. All New Deal cases that were expansive of the federal government. Those would be bad. Then all the way up to the Affordable Care Act and the individual mandate.”

Ah. I wondered what the question stemmed from.

Nothing more can be said in GQ.

Given that this is a political question, let’s move it to Great Debates.

General Questions Moderator

In 1832, commenting about Chief Justice John Marshall’s decision in Worcester v. Georgia, Andrew Jackson said, “John Marshall has made his decision, now let him enforce it.”

Jackson later changed his mind, when he agreed with a Marshall decision.

Yes, and it’s not an unreasonable argument to make. Marbury v Madison was… perhaps a shall we say ‘stretch’ of the court’s powers. It wasn’t enumerated in the Constitution and the two main writers weren’t happy with it, so…

Whitaker’s statement then must be put into that context. In 2014, under Obama, the courts must be delegitimized because they might rule in a liberal fashion. The Ninth Circuit Court often does so, which is why Trump makes them a special target of his ire.

Trump has already said publicly, sometimes in plausibly deniable statements, sometimes more directly. that he expects the DoJ and the Courts to do his bidding, because anyone he has put into office is expected to be personally loyal to Trump or be Sessioned.

Putting conservative judges on the Court has been the goal of the Federalist Society for decades and it is now succeeding in its dreams. They certainly don’t agree that the Courts are a lesser branch. But its all political and situational. If the Courts rule the way the right want, they are to be lauded and shielded from any criticism. If the Courts don’t rule the way the right want, they are to castigated and slandered.

The rule of law is a double-edged term today. The right want to be absolute rulers, and if the law helps them do so, then it’s all good. If not… Trump has already thrown away all civilized norms of government. He’s ruining (or remaking, to the right) the carefully built-up over 200 years stature of the Presidency as the leader of all the people. His obvious plan is to destroy the public’s faith in the Court’s function as neutral arbiters of law if decisions don’t go his way. It’s a cult of personality designed to get his base to continue holding him personally up as the standard for legitimacy so all opposition are enemies of the people. Given the massive wave of opposition that is heading Trump’s way, you can be sure he’ll surround himself with toadies who will and do anything to save him.

Is there a reasonable argument to make about the co-equal status of the courts? Possibly in a law journal or political philosophy course. None can possibly hold in the real world. It’s naked power grabs all the way down.
(I see I sometimes capitalized Courts and sometimes not. It’s too late to copyedit. Don’t read anything into it.)

Did he… or did he enforce a decision that he did agree with?

I like how he completely skips over Heller.

I’m not sure I understand this. It may have been rooted in the British tradition, where parliament (and so congress) would be supreme, with no limitations on its power to make laws. But Britain has no written constitution, so any law can supersede any previous. Also, the USA is (and more prominently, was at the time freshly united) a collection of states, so the constitution enumerated the powers allowed the central government vs. state, at the very least. It would therefore seem to be a given that If a law exceeded the powers given to congress, the courts could remedy any aggrieved party.

After all, what was the point of a constitution if congress could then run roughshod over state rights, passing any law it wanted? And, why wouldn’t the constitution give the same right to reign in congress to aggrieved citizens as it gave to states? Presumably that’s what the authors of the Bill of Rights expected?

There’s not a whole lot of difference between “this law exceeds your constitutional powers, so every time you try to enforce it the courts will rule against you” and “this law exceeds your powers, so it shall be considered null and void.”

Both. Let’s call it “grudging respect.”

Now, I am not a constitutional scholar but I get the idea of not agreeing with the Marbury decision. But aren’t there many, many decisions that rely on it as precedent? Hypothetically, how could that decision be overturned without mucking up a bunch of law?

Am I confused, or is Mr. Whitaker? If not for judicial review, wouldn’t progressives have gotten a lot more?

States would be required to take the PPACA’s Medicaid expansion, Affirmative Action could use quotas without being questioned, and presumably the Voting Rights Act would still be in full force.

It’s bizarre to see someone in the Republican Party complaining about the courts striking down laws, when that’s generally been done by conservatives to undermine “those liberal Democrats.”

Oh, I doubt he’s even read Catch-22.

“All American bullet-headed Saxon mother’s son.”

  • St. John of Liverpool

Courts have typically been pro-business and pro-secularity. Social conservatives definitely see the court as their enemy while economic conservatives see it as their friend. Of course, that changes depending on its make-up and it has vacillated between the extremes.

We all know though that it’s really all about Roe v Wade. Sure there are other socially conservative viewpoints that get shot down from time to time, but Roe is the foundation upon which all American and certainly all judicial politics has been built for the past 40 years.

Yes, Marbury v Madison is completely settled at this point. It’s culturally and politically impossible to change.

While it wasn’t enumerated specifically, the concept of judicial review was generally understood pre-Marbury. It was discussed at the constitutional convention, and had been used by state courts under state constitutions. It had also occurred in lower federal courts prior to the Marburg decision. See the article “Judicial Review before Marbury”:

And then there’s Marshall’s textual analysis of the Constitution. In essence, he goes back to the basic concepts of separation of powers: what do the three branches of government do? The Legislature makes laws; the executive enforces laws; and the judiciary interprets laws. That is emphatically the function of the courts, says Marshall, particularly in a system founded on limited government.

And what does the Constitution say? It says that the Constitution is the supreme law. It’s not a mere political compact, but a law. That means that it is the function of the courts to interpret it. Article VI clearly states that state laws are subordinate to the Constitution, and that state courts are bound to apply the Constitution in cases of conflict between the Constitution and state laws. It doesn’t expressly say the same for federal courts, but Marshall’s argument is that that’s what the “judicial power” in Article III is for.

So no, I wouldn’t say judicial review was a stretch of the court’s power.

Don’t know what you mean about two writers weren’t very happy with it?