In February 1803 the U.S. Supreme Court made a monumental decision that changed the course of American history. In the case Marbury v. Madison, the court established judicial review, the mandate that gives the court the ultimate power and freedom to interpret the Constitution.
On the 200th anniversary of Marbury, the Michigan Law Review held a symposium Friday and Saturday at the Law School to discuss the impact of the decisive court case upon society, Congress and the judiciary system.
Several speakers led panels revolving around current issues concerning judicial review during the two-day event. The keynote speaker, John Noonan, Jr, a senior judge on the 9th Circuit Court of Appeals, reflected upon whether judicial review has been exercised in the best possible way since it was established. Noonan, who was appointed by President Ronald Reagan in 1985, also questioned the validity of the court’s authoritative power over the two lower courts, the legislative and executive branches of government and also the power to define the Constitution.
Noonan commented upon judicial review in modern society and questioned the results of the 1803 decision.
“(Chief Justice John) Marshall was vague in his outlines of the decision and left us with very little guidelines as to whether judicial review should change over time,” Noonan said.
Although Noonan did not take an explicit stance against judicial review, his speech was slanted in favor of altering the current system. Noonan cited several instances in which judicial review was unnecessary, when the court could have reached the same conclusion under Article III of the Constitution, which already grants the court power to make a decision.
“Is a benevolent umpire really needed?” Noonan asked.
He also pointed to 17 cases in which the use of judicial review resulted in harmful mistakes, the worst of which he said was the 1857 case of Dred Scott v. Sanford, in which the court used judicial review to undermine attempts by Congress to extend rights to blacks living in free states.
“The court wanted slavery on their side, and held that no black person could ever be a citizen of the United States,” Noonan said.
Out of 146 instances, judicial review has been truly necessary and useful just 5 percent of the time, Noonan said.
“It has worked well in an era that could be deprecated as merely symbolic, but we work well with symbols,” he added, referring to the Supreme Court ruling on the constitutionality of flag burning.
Law student Jonathan Hanks said he does not completely agree with Noonan’s views on judicial review.
“It is important that the federal system have that separate check both on the legislative and executive branches of government because without it there is very little to hold those powers back,” Hanks said.
Other lecture topics included an examination into whether judicial power should be eliminated or reduced as well as a speech on the place of judicial review since Marbury in the emerging fiends of civil rights and administrative law.