The Origins of Judicial Review Revisited,or How the Marshall Court MadeMore out of Less

Alexander Hamilton called the judiciary the "weakest branch" of the three branches of government,1 but today we know better. To us not only does the unelected, life-tenured federal judiciary seem remarkably strong, but at times it actually seems bolder and more capable than the two elective branches in setting social policy. Certainly the federal judges, and especially the Justices of the Supreme Court, precisely because they do not have periodically to face an electorate, exercise an extraordinary degree of authority over our society and culture. The Supreme Court not only sets aside laws that popularly elected legislatures pass, but also interprets and construes the law with a freedom that sometimes is virtually legislative in scope. But it is not just the Supreme Court and other federal courts that are so powerful. Even the state courts, many of which are elected periodically, are extremely influential. Indeed, as Charles Ingersall pointed out as early as 1826, no where else in the modem world do courts wield as much power in shaping the contours of life as do the American courts.2 We have usually given the name "judicial review" to this sweeping judicial authority. But if by judicial review we mean only the power of the Supreme Court and of other courts to set aside legislative acts in violation of the Constitution, then the term is too narrow, for voiding legislation is only the most prominent part of a broader manipulative power that courts exercise over wide areas of American life. Commentators often have given the major responsibility for creating this power of judicial review to John Marshall, the great Chief Justice of the United States who served from 1801 to 1835. Marshall, nearly everyone acknowledges, was the greatest Chief Justice in American history. During his long career as Chief Justice of the Supreme Court, which spanned the administrations of five presidents, he helped to lay the foundations for both the Supreme Court's eventual independence and the constitutional supremacy of the national government over the states. But more important, at a stroke, his decision in Marbury v. Madison3 was supposed to have created the practice of judicial review. Even a constitutional scholar as sophisticated as Alexander M. Bickel thought that Marshall had done it all. "If any social process can be said to have been 'done' at a given time and by a given act," Bickel wrote in 1962, "it is Marshall's achievement. The time was 1803; the act was the decision in the case of Marbury v. Madison."4 Perhaps this is the way that many lawyers and jurists prefer to explain things. Perhaps they like to ransack the past in order to discover specific moments or concrete precedents, usually court decisions, which created important subsequent judicial practices and processes. The problem with this jurisprudential and unhistorical way of thinking is that it leaves its practitioners vulnerable to critics who can find other, more important precedents and moments in accounting for a practice or process. This has been the case recently with Marshall and judicial review. A number of revisionist legal scholars, including Christopher Wolfe, J. M. Sosin, and Robert Lowry Clinton, have argued that Marshall, in Marbury v. Madison or elsewhere, did not create the modern practice of judicial review.5 These revisionist scholars contend that the origins of judicial review can best be located in the years following the Marshall Court, in the post CivilWar era at the end of the nineteenth century. In these years, revisionist scholars argue, the modem image of the greatness of the Marshall Court was elaborated and expanded, culminating in Albert J. Beverage's monumental four-volume Lofe of John marshall.6 Not until the late nineteenth century did the Supreme Court cite the Marbury decision as a precedent for judicial review, and only in 1910 did the distinguished historian of the judiciary Edward Corwin actually com the term "judicial review. …