Rein in Judicial Review, Issa Suggests in Shot at Marbury (1)

Rep. Darrell Issa targeted Marbury v. Madison in remarks at a Federalist Society conference, saying it’s time to consider whether to “rein in” the 1803 decision at the core of judicial power.

“Everyone learns it, and everyone assumes it’s a postulate,” Issa (R-Calif.) said Saturday in keynote remarks at the conservative legal organization’s western chapters conference. “Okay, but we all thought Chevron deference was a postulate too, until it wasn’t.”

The landmark decision established the fundamental doctrine of judicial review, under which the judiciary can declare executive or legislative acts unconstitutional.

Issa’s remarks come as he is attempting to narrow the power of district judges with a new bill as a series of national injunctions have thwarted President Donald Trump’s ability to quickly enact policy goals, such as a January order to end birthright citizenship. The bill would limit federal court rulings to apply only to litigating parties.

“Is it time to look and say, you know what, the fact is, the other bodies cannot be coequals if in fact the court finds itself with the ultimate say?” Issa said. “The ultimate say that is not infallible?”

Critics have warned that without national injunctions, individuals who aren’t able to go to court could lose key rights.

The bill is set to go to the House floor the week of March 31. Issa said Saturday he expects it to “pass overwhelmingly out of the House.”

The Trump administration has also asked the Supreme Court to scrutinize national injunctions.

Issa said the next step after addressing nationwide injunctions is to target forum shopping, or choosing to file in a jurisdiction where a party might expect a favorable outcome.

“We’re gonna have to come back with a bill that, when it’s the executive branch, and particularly the President’s direct orders, that there has to be a fast appeal to the high court,” Issa said. “We cannot tolerate weeks or months when the executive branch is being stopped from doing something that is time sensitive.”

The conference was held at the Ronald Reagan Presidential Library in Simi Valley, Calif.

Activism vs. Restraint

Speakers at a later panel on the meaning of judicial activism also eyed Marbury.

Adam Feldman, who studies the Supreme Court and created Empirical SCOTUS, a statistical blog on the court, called Marbury “one of the earliest and most consequential acts of judicial activism.” He said “activism” is sometimes needed to uphold the Constitution.

“Rather than being judicial overreach, [Marbury] helped cement the judiciary’s role as a coequal branch of the federal government capable of checking other branches,” Feldman said.

Judge Jay Bybee of the US Court of Appeals for the Ninth Circuit, an appointee of former President George W. Bush, cautioned for the application of a set of neutral rules to overturn judicial precedent.

He cited “dueling wishlists” of dozens of cases that either conservatives or liberals wish to overturn. Doing so risks “opening up a Pandora’s box,” Bybee said.

Bybee also noted that a few cases are unlikely to be overturned due to a lack of political will, despite potentially being on constitutionally “choppy grounds.”

He singled out Obergefell v. Hodges, which established the right to same-sex marriage nationwide, and Griswold v. Connecticut, a fundamental right to privacy case that protects the ability of married people to obtain and use birth control.