The Marbury Myth

A must read.

Thus, Marbury-style judicial review is very limited in scope. It is restricted to cases in which Congress has unconstitutionally meddled with the Court’s functions. This is surely why the case was largely ignored by courts and legal commentators as a precedent for judicial review until the late 19th century. The Court itself didn’t notice that Marbury had anything to do with judicial review until 1887, and even then it misread the case as authorizing judicial review of state law — which Marbury had nothing to do with. It was not until 1895 that the Court first cited Marbury as a precedent for judicial review of national law, despite having invalidated some 20 congressional acts by that time. Stop and think for a moment about what this means: The case that is used as the leading precedent for modern judicial supremacy was not even regarded as an instance of judicial review until 92 years after it was decided!