Judges and Juries, Part 2

The Supreme Court invalidated exactly one act of Congress before 1850, and it concerned the Court's own jurisdiction. Akhil Reed Amar explains how judicial review grew from that into what it is today.

This lecture separates the principle of judicial review from its scale. Amar derives the principle in two steps, since the Constitution outranks statutes in democratic pedigree and judges are bound to follow law, and notes that the same logic gives the House, the Senate, and the president their own constitutional vetoes. He then assembles the evidence that the founders expected something modest: an unspecified Court size, an original bench of six, no requirement that opinions be written or collective, and a Marshall Court that struck down state laws constantly while touching one federal statute. He accounts for the modern expansion through more judges, certiorari and docket control, rights-creating amendments after the Civil War, and divided government. The lecture returns to juries as Article III's lower house, whose thin protection helped precipitate the Bill of Rights, and closes on John Marshall, the diplomat and politician who made the Court real, and on his successor Roger Taney, whose pro-slavery vision led to Dred Scott.