Marbury and Miranda

Here's a thought inspired by the fact that I'm teaching Marbury v. Madison in my federal courts class today: Much recent scholarship in the vein of popular constitutionalism, especially Larry Kramer's The People Themselves, makes the point that in its day, Marbury v. Madison was not the manifesto of judicial supremacy that it has since become. Kramer and others argue that John Marshall's point in Marbury was that the courts were not uniquely disqualified from making constitutional judgments; Kramer says that Marshall did not intend to say that the courts were uniquely qualified to make such judgments.

I'm not entirely convinced by Kramer (although I have sympathy for the view that political actors have an important role to play in filling out the meaning of the Constitution, as Barry Friedman and I argued in an article called Shared Constitutional Interpretation some years ago). But let's set that aside. Here I want to suggest that even if one buys Kramer's historical argument, Marbury may have legitimately BECOME a precedent for judicial supremacy because it has come to stand for that proposition in the public imagination. To the extent that the public have any views at all about the Constitution (and surveys repeatedly show that most people haven't a clue), they tend to treat Marbury as standing for the proposition that the Supreme Court has the final say about what the Constitution means. In light of that fact, for the Supreme Court, or worse, Congress or the President, to reassert the supposed original version of Marbury would be widely perceived as an assault on not just the Court, but the Constitution itself.

Something like this phenomenon occurred when, in 2000, the Supreme Court reaffirmed Miranda v. Arizona, holding that it was "a constitutional decision" that Congress could not change. Even though Miranda contained language that could plausibly be read to permit Congress to displace its requirement of warnings, the Court, including former Chief Justice Rehnquist, who had formerly criticized Miranda, understood that to rely on that language would be to miss what Miranda had become in the public imagination: namely, a precedent for the requirement of regularity and the rule of law in police practice. The Chief's actual opinion in Dickerson (the case that reaffirmed Miranda) had a variety of technical defects, but it correctly captured this "public" dimension of the case. Kramer and some of the other popular constitutionalists, I think, overlook such symbolic aspects of Supreme Court decisions in their call for a return to the original version of Marbury.