A Constitution in the breach: the most egregiously poor SCOTUS decisions of all time. There are several I will cover in chronological order. I will try to make them as concise, incisive and succinct as humanly possible.


WHY: Established the extra-constitutional power of judicial review from which all other activist decisions originate.

BRIEF BACKGROUND: (The background here is thick and involved and I want to spare you from as much of it as possible, it can get awfully boring. I want to, however, give you enough information that you will better understand the motivations behind such a judicial power grab.)

The idea of Judicial Review was nothing new in the nascent republic. Samuel Chase in Calder v. Bull (1798), made the case for the Supreme Court to strike down laws that in no way violated any provision of any constitution, federal or state.

His argument thereof was devoid of any logical basis and his opinion was mired in verbal gymnastics masked with a prolixity found in many of the SCOTUS activist decisions we see today. However, contemporary Courts tend to be far less candid in powers that don’t belong to them than Justice Chase was.

Chase was an extremely partisan judge (he was later impeached because of it, but escaped conviction in the Senate), and his likely federalist leanings may have been the impetus for his activist proclivities. This is precisely the reason John Marshall (a federalist, Thomas Jefferson’s cousin and political rival, never got along) created the power out of thin air dealing with a case that should have never been in the Supreme Court in the first place. In short, judicial review was born out of political motives and expediency.

John Adams (a federalist), before the subsequent election of Thomas Jefferson (a Republican), did as much as he could to maintain the federal judiciary as a federalist stronghold. Federalists favored a much stronger federal government than did the Republicans and a political struggle and rivalry ensued.

When Adams realized he was not going to be re-elected he helped create and pass the Judiciary Act of 1801, creating 16 new federal judgeships of which Adams would appoint federalist judges. Adams’ term ran out, however, before his Secretary of State, John Marshall, could deliver all the new commissions. Marshall’s successor, James Madison, refused to deliver them, William Marbury (one of the appointed judges) filed suit in federal court seeking a writ of mandamus directing Madison to deliver said commissions (Madison was so flustered by the suit he didn’t show up). John Marshall assumed the position of Chief Justice precisely one month after Adams left office. With a newly elected Republican Congress in 1800 Marshall understood the tenuous nature of his position on the Court and the very real possibility of Jefferson and Congress to denude the Judiciary of power. Marshall knew he had to do something.

DID SCOTUS HAVE JURISDICTION: It was a very odd suit to begin with and what is even more odd is that Marbury brought this case to the wrong court. Article III of the Constitution places certain cases within the jurisdiction of the appellate courts. These are cases that appear in the lower courts and come to the SCOTUS for review. This case did not fall under the criteria of original jurisdiction whatsoever and should have been dismissed.

THE DECISION: Marshall, in stroke of political genius (in favor of the federalists), asserted that Marbury had something similar to a property right to hold an office (precedent at the time), which he had been appointed to and confirmed. He went on to assert that the Court has the power to strike down statutes that were inconsistent with the Constitution. Not only did he ignore the fact that the Court has absolutely no jurisdiction in this matter, he invented a doctrine that had absolutely no constitutional basis. Judicial Review was born, upsetting the delicate balance between the federal government and the states along with all fidelity to the document over time.


– Will Ricciardella