Justice Sotomayor Needs To Re-Read Marbury v. Madison
During oral argument in Dobbs, Justice Breyer implored everyone to re-read Casey. The former law professor should give Justice Sotomayor another reading assignment.
Justice Sotomayor was trying to make the point that many of the Court’s decisions are not premised on the written Constitution. (Ilya wrote on this point). Sotomayor identifies Marbury as an example of such a case.
JUSTICE SOTOMAYOR: Counsel, there’s so much that’s not in the Constitution, including the fact that we have the last word. Marbury versus Madison. There is not anything in the Constitution that says that the Court, the Supreme Court, is the last word on what the Constitution means. It was totally novel at that time. And yet, what the Court did was reason from the structure of the Constitution that that’s what was intended.
Huh? Absolutely nothing in Marbury said that the Supreme Court has the “last word on what the Constitution means.” Nothing. That bold assertion of judicial supremacy w
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