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38 Wake Forest L. Rev. 697 (2003)
The Politics of American Judicial Review: Reflections on the Marshall, Warren, and Rehnquist Courts

handle is hein.journals/wflr38 and id is 707 raw text is: THE POLITICS OF AMERICAN JUDICIAL REVIEW:
L.A. Powe, Jr.*
The strongest statements about the Supreme Court's role
interpreting the Constitution were made in response to nonjudicial
political actors making claims of their own rights to interpret the
Constitution. Thus Marbury,1 Cooper v. Aaron,2 and Casey3-Boerne4-
Dickerson5 are all efforts by the Court to protect its perceived turf
from unwanted intervention. Each6 involved a new7 claim about the
relationship of the Court to the Constitution and some part of
American society. Constitutional politics created all of them.
Marbury v. Madison was a result of the Federalist defeats in
the elections of 1800. With the House of Representatives deciding
between Thomas Jefferson and Aaron Burr, the lame-duck
Federalist Congress was busy creating judicial offices to be filled
quickly by the outgoing John Adams. William Marbury was to be a
justice of the peace in the District of Columbia, but his signed and
sealed commission was not delivered before the end of the Adams
Administration. After Jefferson instructed his Acting Secretary of
State, the Attorney General Levi Lincoln, to withhold it, Marbury
* Anne Green Regents Chair, University of Texas School of Law. I would
like to thank Tom Krattenmaker, Doug Laycock, Sandy Levinson, and Ernie
Young for their helpful comments on earlier drafts.
1. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
2. 358 U.S. 1 (1958).
3. Planned Parenthood v. Casey, 505 U.S. 833 (1992).
4. City of Boerne v. Flores, 521 U.S. 507 (1997).
5. Dickerson v. United States, 530 U.S. 428 (2000).
6. For these purposes, as the later discussion will show, I am treating the
three recent cases as if they were one.
7. In the case of Marbury, this simply means that this was the first case
fully addressing judicial review.
8. I will not discuss the Taney, Chase, Fuller, White, or even the Hughes
Courts because they never expressed a theory of judicial review and its
consequences different from Marbury.

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