With the tenth anniversary just behind us and folks are still up in arms and continue to debate from the left and from the right about the Supreme Court decision, Bush v Gore, which stopped the recount of votes in Florida during the 2000 presidential election thus ensuring that those state’s electoral votes would go to Texas governor George W. Bush giving him enough votes to become President, I pause to chuckle when I read the lengthy diatribes about the decision because I know that if it was Vice President Al Gore who had had the lead and Bush who wanted a recount, those on the right would argue about state’s rights and the those on the left would be yakking on about Article II and equal protection under the law.
In other words, the sides would have been flipped all based on whose ox was being…uh…gored.
But instead of prattling on about hanging chads and the like, I want to take notice of the original activist judge. By “activist judge”, I mean a justice who set a constitutional precedent by creating a brand new power for the judicial branch – a power that is not mentioned in the United States Constitution.
The year 2010 saw the 207th anniversary of the Supreme Court case, Marbury v Madison. This is the case, decided in 1803, that set the precedent of judicial review where the Supreme Court could declare any law created by Congress as unconstitutional. The Supreme Court, through judicial review, could also declare any state law unconstitutional.
Chief Justice John Marshall wrote the opinion in Marbury v Madison and it is he who I credit with being the first “activist judge” because he creates the concept of judicial review. By declaring the Judiciary Act of 1789 went against the U.S. Constitution, Marshall creates the precedent that the Supreme Court, on its own, can nullify any law passed by a federal or state legislature.
Marshall creates the precedent of judicial review out of whole cloth because the entire section of the United States Constitution devoted to the judicial branch (that would be Article III) makes no mention at all about judicial review and the whole document itself is silent on the concept of the judicial branch voiding any act of the legislative branch.
In fact, according to this snippet from the Wikipedia entry on constitutional courts, the United States Supreme Court is…
“the world’s oldest constitutional court” because it was the first court in the world to invalidate a law as unconstitutional
So not only does Marshall create a new American constitutional precedent, he sets a world precedent.
Now that is an activist judge!
So why is it that when folks from both sides of the ideological spectrum spout off and criticize this justice or that judge as “activist” (a term which usually is defined by the writer as “a judge who decides a case in a way I disagree with”), Chief Justice John Marhsall is never painted with the “activist” brush as he is the one who set the whole crazy ball rolling in even allowing a member of the judicial branch to insert themselves in the legislative process?