Former student “Popcorn Papacy” wrote: “Do [Justice] Sotomayor’s comments during Dobbs v Jackson about powers enshrined to the Supreme Court by the Constitution affect how you teach Marbury v Madison (judicial review!) at all? If they do, how so?”
I responded, “Do you mean her comments/questions during oral arguments, her commentary in the dissent (which was jointly written with Kagan and Breyer), or some public comments she might’ve made in a speech or interview?”
Papacy responded: “Ah! It was a quote during oral arguments that was mentioned in a Politico opinion piece I was reading. The quote is in the opening paragraph.”
Because we don’t skimp at this website, here are the first two paragraphs of the piece:
Last December, during oral arguments in Dobbs v. Jackson Women’s Health Organization, the case in which the Supreme Court overturned Roe v. Wade, Justice Sonia Sotomayor noted that “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.”
It was a remarkable observation. Sotomayor’s primary intent was to argue that rights and prerogatives need not be explicitly delineated in the Constitution for them to exist. The right to privacy — more specifically, the right to terminate a pregnancy — does not appear anywhere in the document, but neither does the Supreme Court’s power of judicial review. Both exist by strong implication.
So here’s my response to Popcorn’s original question:
No.
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Anyways, the Bears were awful today. Poor play-calling, not nearly enough vertical pass calls, Fields appears not to have progressed much… really depressing. Even worse, Jordan Love seems to be the real deal, so we Bears fans have another 15 years of Hall of Fame level Packer quarterbacking to contend with, and– hold on a second.
The staff is telling me I need to write more about Sotomayor’s comments, as if they run this show. Fine.
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“How I teach Marbury” is pretty simple. I train the students to say “judicial review” out loud whenever they hear “Marbury v. Madison,” and vice versa, so that that case and that power– the power to strike down unconstitutional laws– are inexorably intertwined in their brains. Then I explain what it all means, though this part isn’t as memorable. Judicial review was intended to be a power of the Supreme Court under the Constitution, but it’s not literally written in there, so some whiners like Thomas Jefferson and (ironically, given his work on the document) James Madison argued that states should be able to exercise judicial review over strike down* federal laws. But SCOTUS Chief Justice John Marshall had the conch, so he made clear that the Supreme Court had the power of judicial review.
So, no, nothing in Justice Sotomayor’s comments would lead me to change how I teach these concepts. But allow me to go further and be nit-pickier.
According to the Politico article, Sotomayor claims
There is not anything in the Constitution that says that the Court, the Supreme Court, is the last word on what the Constitution means.
[emphasis mine]
Yes there is. Read the first sentence of Article III. “The judicial power of the United States, shall be vested in one Supreme Court.” Does it literally state that the Supreme Court is “the last word on what the Constitution means”? No. But is there much else you can deduce after reading it? Also no.
The Politico article acknowledges this, without explicitly calling Sotomayor out for it. Next line:
It [judicial review] was totally novel at that time.
[brackets mine]
No it was not. Look up the history of judicial review in the United States prior to Marbury. Look up Federalist 78– in which Hamilton writes “It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void.” Look up the Judiciary Act of 1789 (part of which, ironically, would be struck down in Marbury). Look up Hylton v. US, which was the Court’s first use of judicial review.
Something which has several recent precedents and is strongly implied by the Constitution (if not explicitly enumerated, depending on how you want to read Art. III, Sec. 1) is not “totally novel.”
Again, the Politico article acknowledges this, without explicitly calling Sotomayor out for it. Next line:
And yet, what the Court did was reason from the structure of the Constitution that that’s what was intended.
[all hers]
This is true, and judicial review is a layup in that regard. She’s leading into the idea that Roe was “reason[ed] from the structure of the Constitution,” which I won’t address right now aside from pointing out that many of the Constitutional provisions used to justify a privacy-protected-right-to-abortion could just as easily be used to justify a prenatal-right-to-life. They generally aren’t used that way, but they legitimately and fairly could be.
Sotomayor’s comments generally reflect how Marbury is normally taught, and would not change how I teach about it. However, if she were in my classroom, I would correct her absolutist descriptors (“not anything,” “totally novel”). She makes it sound like John Marshall grounded his decision in Constitutional precedent while simultaneously conjuring it out of thin air. But it can’t be both. In short, whoever appointed her to the Court deserves to have his favorite football team suck forever.
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There’s a ton more to be said about the Politico article, but it’s late and I’m tired.
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* TJ and Madison wanted state legislatures to be able to strike down federal laws that they deemed unconstitutional. That’s not a judicial procedure, thus it wouldn’t be judicial review, thus the strikethrough of my original words and the edit in italics.
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