And when it did act in this sense, it acted under extraordinary circumstances, in an attempt to solve by judicial decree an extraordinary political problem; and the attempt had extraordinary and disastrous results.

Spoiler alert, those disastrous results was the encouragement of what would become the Confederates to break up the union and the horrors of the Civil War.  It is quite possible that without the encouragement of the Taney majority in the Dred Scott case there may have been no Confederacy, no Civil War and some other denouement of one of our national original sins would have come.  Of course the arguments in the Dred Scott decision were full of lies, such as that the founders never contemplated Black People having equal rights to white ones when most of the states allowed Black People to exercise legal rights, up to and including the right to vote.  And the Constitution, from the start, clearly contemplated restrictions on slavery and even its possible, eventual end.  But if there's one thing that's clear about Supreme Courts, the members of them know how to lie and practice legalistic hypocrisy and many of them will even in the most serious of documents.  But Boudin isn't done with the years between Marbury v. Madison and the Dred Scott decision.

Nor was the power to annul federal legislation used by the federal judiciary for many years after Marshall's death,  not indeed until the troublous times which immediately preceded the Civil War.  During Marshall's chief-justiceship and under his successors, a number of state enactments were declared void because in conflict with the federal Constitution, and particularly because of attempted encroachment upon powers attributed to Congress;  but the first case in which an ordinary law of Congress was declared unconstitutional was that of Dred Scott.  And the only case besides Marbury v. Madison in which any law of Congress can be said to have been declared unconstitutional before the fateful Dred Scott decision was the negligible case of Fereira v. the United States, decided but a few years earlier.  It will thus be seen that for at least a half a century no attempt was made by the federal judiciary to exercise the power asserted in Marbury v. Madison.  And when it did act in this sense, it acted under extraordinary circumstances, in an attempt to solve by judicial decree an extraordinary political problem;  and the attempt had extraordinary and disastrous results.

In the meantime the conflict over this power was raging in other fields.  The state courts in several instances attempted to follow up the logic of Marbury v. Madison.  The state courts were in this respect in a much better situation than the federal courts.  The acts of the state legislatures were admittedly subject to review by the judiciary, both federal and state, on the score of repugnancy to the federal Constitution, treaties and statutes, in matters of a federal character.  From this it was but one step - and a step which the layman could not always see - to the power of review on the score of repugnancy to the respective state constitutions.  And yet this step was not taken unopposed, even after Marbury v. Madison.  The ensuing conflicts form one of the most interesting chapters in our history - a chapter unfortunately now entirely neglected, the common lot of all struggles which end in defeat.  It may be said in general,  that the actual exercise of this power by the judiciary of the several states during the first fifty yeas after the adoption of the Constitution was very rare; that it was used only under extraordinary circumstances;  and that its use almost always provoked great public excitement and sometimes entailed results of a more serious sort.  In Kentucky it at one time led to the creation of two rival courts, each defying the other, and it almost led to the creation of two state governments.  In view of these conflicts, and of the disastrous results attending the first important use of the federal power to annul an act of Congress in the Dred Scott case, it sounds like bitter irony when Judge Lurton says that this power has made us "for more than a century the most law-abiding people of the earth."

I will ask in passing what Lurton's personal history as a Southerner and a Confederate soldier may have done to influence his view of this power which was first used by the Southerner and champion of slavery and white supremacy, Roger Taney to protect and expand the reach of slavery may have been retained even after he belatedly pledged his loyalty to the United States and was elevated to the Supreme Court.  Clearly his concept of "law-abiding" had included enslaving People and committing treason.   I have no doubt that first and fatal expansion of that usurped power was very popular among slave-holders and white-supremacists along with its declaration that Black People had no rights white people were bound to respect.   And so it is practiced by the court in 2022.

In most of the cases, however, the power in question although generally asserted, was not used at all during the first half of Judge Lurton's "more than a century."  This was the case, for example in Pennsylvania, then the leading state of the Union.  During the half-century following the adoption of the United States Constitution the Pennsylvania courts did not declare a single law unconstitutional,  although the judges, with one notable exception, usually asserted that right.  There may have been other exceptions, for it is probable that the doctrine was not quite so universally accepted even by the judiciary, either in Pennsylvania nor elsewhere as is now imagined; but the one exception known to us is that of Judge John B. Gibson, for many years judge of the Pennsylvania supreme court, part of the time its chief justice, and one of the ablest men who ever sat on that renowned bench.  His opinion, officially stated in 1825, is a most convincing (and in my judgement quite unanswerable) argument against the existence as well against the expediency of the power of the judiciary to review legislation under any circumstances.  Its historical importance, however, lies in the fact that, nearly a quarter of a century after Marbury v. Madison, one of the three judges who then composed the highest court of the great state of Pennsylvania, in an official judicial opinion, denied the existence of the power asserted by Marshall.  And it is not without historical interest, as an evidence of the spirit of the time and commentary upon the changed spirit of ours, that Judge Gibson's views did not impede his promotion to the chief-justiceship of his state.

I would doubt that many of us brought up in the most expansive period of government by judiciary have any idea of this history, especially the skepticism of some of the most informed, most respected and accomplished of statesmen, lawyers and judges of this novelty of Supreme Court invention and expansion during the period when the country was introduced to it and was gradually habituated to it like it has become habituated to so many other malignant and even fatal things.  The continuance of the practice by the malignant Rehnquist and now Roberts-Alito Court is dependent on the ignorance of its actual history and its actual reception by even those as held up laconically as Jefferson and Lincoln.  The illegitimacy of it is far, far more well founded than its claimed legitimacy which is mostly based in the assertion of ever more grasping Supreme Courts and those who, on balance benefit from and so approve of the Court exercising legislative and executive powers.  But the results of it, except in rare cases, has been bad for the country, destructive of equality (except in a few cases which the present Court is obliterating) and democracy.  It is bad for the environment we all depend on for the benefit of the profit of the few (astonishingly, in recent cases, the Court nullifying treaty obligations whereas the excuse for it being exercised included making sure the Congress didn't violate treaties) and reimposing the very white supremacist apartheid that the first significant use of that power also attempted to establish by fiat.  

It has emboldened the Supreme Court to be far worse than the original skeptics and critics of the power claimed by John Marshall probably imagined they would become when, as can be seen, the actual members of the court were quite modest and even deferential to the elected branches.  Though from the earliest of those skeptics' criticisms was mentioned the danger of a run amok court practicing dictatorial powers.  The foresighted were those critics, not John Marshall, not those who agreed with him on and off the Court.  Not the majority of lawyers and lower judges who just went along with it out of professional expediency.  Certainly not Taney and his six colleagues who issued the Dred Scott decision which they idiotically believed would "restore national peace and harmony" by extending the violence of slavery to the entire country and which did facilitate the worst war in our history.

And as Boudin points out, the Court expanded its use of that self-given power steadily after that.  The Roberts-Alito Court is using it to bring us to a crisis that even their foolishly depended on non-support of Trump's treasonous insurrection cannot make up for.  The Court has to have that self-created absolute power taken from it and they must be subjected to real and binding and consequential ethics laws that they cannot brush aside by their Supreme fiat and things such as a term limit and, I think, a requirement that a number of them have competency in things such as math and science which they certainly lack to a person, now.  It is obvious that those arrogant lawyers figure their erudition can make up for that when it's obvious that it can't.  They regularly practice an arrogance that even George III would have been well beyond, they have more in common with some of the madder medieval style kings and princes than in ones since the scientific method took hold in Western culture.  We have never had worse "justices" than some of those who make up the Republican-fascist majority of it right now, in terms of character, in terms of competence, in terms of arrogance and the arrogance of office without any check.  We don't need to wait for the even worse that that court can come up with to end it.