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115 Harv. L. Rev. 5 (2001-2002)
Foreword: We the Court

handle is hein.journals/hlr115 and id is 27 raw text is: THE SUPREME COURT 2ooo TERM FOREWORD: WE THE COURT Larry D. Kramer* I. WE CALL IT LAW F or all his genius, John Marshall is seldom included among Amer- ica's great political or legal rhetoricians. He penned some decent enough lines, but nothing with the power routinely displayed by a Holmes or a Lincoln, or, even among his contemporaries, by a Jeffer- son or a Paine. There is one line, though, that every lawyer and law student knows by heart, almost by instinct: It is, emphatically, the province and duty of the judicial department, to say what the law is.1 There supposedly, in one pithy sentence, is the Supreme Court's own Declaration of Independence. But what does Marshall's statement mean - on the ground, in op- eration? In 1958, the Court insisted in the almost-as-famous case of Cooper v. Aaron2 that Marbury declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Consti- tution, adding that this idea has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.3 Well, hardly. As we shall see below (though it is by now conventional wisdom), Marbury staked out a con- siderably more modest position, venturing only that it was proper for * Samuel Tilden Professor of Law, New York University. Countless friends, colleagues, and students have given me useful advice and challenging comments. Special thanks go to Bruce Ackerman, John Baker, R.B. Bernstein, Michael Dorf, Noah Feldman, John Ferejohn, Martin Flaherty, William Forbath, Barry Friedman, David Golove, Thomas Grey, Randy Hertz, Don Herzog, Mattias Kumm, Daryl Levinson, Sandy Levinson, John Manning, Michael McConnell, Henry Monaghan, William Nelson, Pasquale Pasquino, Rick Pildes, Robert Post, Edward Purcell, Jack Rakove, John Reid, David Shapiro, Reva Siegel, Peter Strauss, William Stuntz, Cass Sun- stein, William Treanor, Mark 'Thshnet, and Michael Wishnie. I received insightful feedback from participants in the N.Y.U. Legal History Colloquium as well as from faculty workshops at Co- lumbia, N.Y.U., and Yale. I would also like to thank Jay Shuman for his always invaluable re- search assistance. Participants at the University of Utah graciously listened to me present this when it was but a proposal and offered many helpful comments. 1 Do I even need to include a citation? For the sake of form: Marbury v. Madison, 5 U.S. (r Cranch) 137, 176 (1803). 2 358 U.S. 1 (1958). 3 Id. at r8. 5

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