Two more thoughts I wanted to add to our conversation last night about Marbury v. Madison and the practice of judicial review:
* First, regardless of the merits, judicial review has become an entrenched aspect of our constitutional structure because, over the past 200 years, we Americans--and particularly we Americans in political power--have generally liked its results. Indeed, elected officials have generally found many reasons to like judicial review, even though it occasionally invalidates policies they like. Often, for instance, it may be politically easier to delegate matters to courts so as to avoid political responsibility for controversial decisions. Or courts might be used by national political coalitions to stamp out regional outliers (here is where judicial review of state laws is especially important) when national politicians are incapable of doing so through more direct means. There are a variety of possibilities. The important point is that the power of judicial review--that is, the role of the Supreme Court in shaping our Constitution's meaning over time--has been politically constructed. It does not emanate from the law.
* Second, perhaps the more interesting question than whether the Court has the power of judicial review is how far that power extends. Consider the recent affirmative action case involving the University of Michigan. In Gratz v. Bollinger, the Court held that Michigan's undergraduate admissions program, which assigned a fixed number of points to applications based on ethnicity or race, was unconstitutional. As a party in the law suit, the University of Michigan surely must follow this decision, lest it be in contempt of court. This is critical to the rule of law. But must the University of Oregon? Can the governor of Oregon interpret the Constitution differently, adhere to a nearly identical affirmative action program, and face any law suit if it comes? If so, how is this consistent with the rule of law? If not, is there a meaningful difference between the Constitution and the opinions of the Supreme Court? Is it not the former that is our foundational law, rather than the latter?