Marbury (was: grading Justices and Opinions)
gepps at LAW.UOREGON.EDU
Sun Mar 11 16:51:20 PST 2001
I share some of David's reservations about Marbury's craftsmanship sub
But when one views the shaky circumstances of the Court at the onset of
the Jeffersonian Revolution, and the very real possibility of
impeachment becoming a partisan weapon, perhaps the true measure of
craftsmanship in this case is that not only the opinion but the writer
and his Court survived and throve as a direct result. Like it or not,
we are all children of Marbury now (Robert Bork being the only
contemporary theorist who is willing to forgo judicial review--though
even he is apparently rethinking this position in a rapture of
admiration for BUSH V. GORE).
"David B. Cruz" wrote:
> On Sun, 11 Mar 2001, Daniel Hoffman wrote:
> > shubha ghosh wrote:
> > > "[I]t is hard to deny in my view
> > > the craftsmanship of the [Marbury] opinion."
> > >
> > No craftsmanship problems with an opinion which
> > first thoroughly reviews the merits and only then
> > announces that the Court lacks jurisdiction over
> > the case?
> While that aspect of Marbury might, perhaps, be defended on grounds that
> Marshall was demonstrating the necessity of reaching the constitutional
> questions, his interpretation of Section 13 was atrocious, showing little
> craftsmanship but perhaps craftiness, and his claims about the necessity
> of his interpretation of Article III are melodramatically overstated,
> indeed, bordering on patently false.
> So, some points for cleverness on the arguments in support of judicial
> review, as well as for political savvy (which is not necessarily a bad
> thing in a Supreme Court opinion), but not much else in my book.
> -David B. Cruz, USC Law (Cal.)
University of Oregon Law School
1221 University of Oregon
Eugene OR 97403
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