Document Type



34 Suffolk L. Rev. 485 (2001)


While the case of Marbury v. Madison 5 U.S. (1Cranch) 137 (1803) has had its share of criticism , its basic holding that the Supreme Court is the final arbiter of the meaning of the Constitution is certainly bedrock. However, given the “counter-majoritarian difficulty,” which suggests that judicial review is in tension with democratic rule, the Court’s authority to displace majority decisions found in state and federal law becomes problematic. The authority can be claimed as emanating from the original social compact, ratified by a super-majoritarian popular consent and intended to continue in time unless and until amended. However, claims of judicial tyranny can be heard by the opponents of virtually every exercise of judicial review. In theory, the closer the decision is to the original deal, the greater its legitimacy. But what was that deal-was it to keep judicial review closely tied to the specific language and meanings of the founding document; or was it to vest the Court with a degree of flexibility to fashion a body of law that assured that the meaning of fundamental rights would develop and flourish in an ever changing world? The Court’s history has seen frequent movement between these two poles.

Date of Authorship for this Version

January 2002


Legal Criticism