Eric Posner on Sloan's New Book About Marbury vs. Madison

Debate: Eric Posner, Akhil Reed Amar, Dahlia Lithwick, Kenji Yoshino
Eric Posner
March 3, 2009

Cliff puts Marbury on a pedestal but observes that the opinion has its academic detractors. My one parochial complaint about this lively and enjoyable book is that the natterings of my tribe are confined to a single footnote (!) on Page 179. This footnote reports that academics have quibbled over the legal craft of Justice Marshall's opinion, and I suppose that is true if quibbling means exclaiming, "Hey, he doesn't give any reasons!"

In fact, although Cliff marvels at the reasoning of the opinion, he doesn't really defend it. Instead, he points to what he sees as the good consequences of the opinion for the ages. He claims that Marbury established judicial independence—the principle that politicians can't tell judges how to decide cases. But Marbury established judicial review of federal statutes, not the broader concept of an independent third branch. A country can have judges who do not take orders from politicians without also giving those judges the power to strike down statutes. This is indeed the case in many countries in Europe and elsewhere, where civil liberties are just as robust as they are in the United States.

Eric Posner