A Stitch in Haste

Care to guess who said the following?

Warren-style judicial supremacy did not start with Marbury v. Madison, which was a decision of relatively limited reach. The prime example of pre-Warren judicial supremacy was Dred Scott v. Sanford, which the liberals don't like to talk about because it is so embarrassing. That's why they like to cite Marbury.

Of course, an alternative reason why "liberals" (like me?) don't cite to Dred Scott v. Sanford, 60 U.S. 393 (1857) is because it's no longer good law — it was, as most people know, explicitly overturned by the Thirteenth and Fourteenth Amendments.

Or perhaps "liberals" (like me?) prefer to cite to Marbury v. Madison, 5 U.S. 137 (1803), not only because it is (hopefully) still good law, but also because despite its (nominally) "limited reach" (it was a case about the writ of mandamus), it was the first Supreme Court case to reiterate (but not "invent") the already well-understood principle of judicial review. It was the first core statement in the new Republic of that aspect of the separation of powers, in a way that Dred Scott never was.

Incidentally, what was the "judicial supremacy" supposedly at work in Dred Scott?

It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution.

Those words, the call for absolute deference by the judiciary to the wisdom and benevolence of the legislature, could just as easily have been lifted from the recent gay marriage defeats in New York or Washington, or from Bowers v. Hardwick, 478 U.S. 186 (1986) (overturned by Lawrence v. Texas, 539 U.S. 558 (2003)), or from just about anything written by Antonin Scalia: If it's broken, then don't fix it — leave it to the legislature whenever even remotely conceivable. No matter how unfair, unjust or outright obscene the current state of affairs may be or how unlikely a legislative remedy might actually be.

That somehow qualifies as "judicial supremacy"? Could a more preposterous assertion be made?

Stated differently, Dred Scott is not remembered because it was so terribly wrong as a question of constitutional law or "judicial activism," but rather because it was so terribly wrong as a simple question of morality and conscience.

And which is exactly how the bigot amendments will be remembered in the future. They're not wrong because they're fundamentally improper. They're wrong because they're fundamentally immoral.

The jurisprudential bigot logic of Dred Scott is exactly the same jurisprudential bigot logic of anti-gay mania today. And the one thing that a bigot has no right whatsoever to label this logic is "judicial supremacy."

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You want true examples of "judicial supremacy" in the Dred Scott era? You need look no further than McCulloch v. Maryland, 17 U.S. 316 (1819), which turned Article I upside down by rewriting the Necessary and Proper Clause into the "Unnecessary but Possible" Clause. Or how about the Slaughterhouse Cases, 83 U.S. 36 (1873), in which the Supreme Court simply erased an entire clause of the Fourteenth Amendment? Now that's "judicial activism" in the true (i.e., perverted) sense of the term. (More examples and discussion here.)

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Oh, I'm sorry — I never revealed who said it. Answer here. See also here.