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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: REFLECTIONS ON THE MARSHALL, WARREN, AND REHNQUIST COURTS 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. I. THE MARSHALL COURT: WE'RE IN THE GAME 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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