As early as 1803, the U.S. Supreme Court was moved to assert its power, in Marbury v. Madison. If two laws conflict with each other the courts must decide on the operation of each. Stanford Law School Dean Kathleen Sullivan praised the Florida decision as a direct descendant of that hallowed principle. But Michael McConnell, a constitutional scholar at Utah University law school, emphatically disagreed. That time frame had no source in the Florida statute, but the justices were moved to craft it by the need to ensure that Florida's voters had their voice in the electoral college.
History is packed with tension over judicial powers.
President Andrew Jackson clashed with the U.S. Supreme Court over Cherokee rights, openly defying an order to negotiate rather than forcing them off their land. Franklin D. Roosevelt battled the high court over executive powers to deal with the Depression. In the late 1960s, after 15 years of sweeping decisions from the court in Washington, billboards sprang up demanding the impeachment of Chief Justice Earl Warren. And this question has echoed through the Bush-Gore contest from the start, especially in the context of appointing U.S. Supreme Court justices. Bush likes to say that judges shouldn't make laws.