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Flash: Courts Can Strike Unconstitutional Laws

It’s not our fault that we’re off topic.

Because there’s never been a week so weird for SCOTUS news as this one, at least not during our lifetime.

The president questioned the right of ‘unelected’ supreme court justices to review federal statutes. That was Monday.

The next day, a judge at the 5th U.S. Circuit Court of Appeals ordered the DOJ to turn in a writing assignment — three pages, single spaced. Tell me, the judge said, whether or not the Obama administration believes the courts have the right to strike down a federal law.

By Wednesday, the backlash against the president’s comments forced Attorney General Holder, above, to say something no attorney general of the United States has needed to say since 1803: ‘We respect the decisions made by the courts since Marbury v. Madison. Courts have the final say.’

If that story line had been made up for an episode of The West Wing, everyone would have said it was too preposterous.

*     *     *

But oh, Marbury v. Madison. Yes, from 1803. Establishing judicial review — the right of the courts to review federal laws and invalidate anything offensive to the Constitution.

We know that case and always will. From our first day of law school. The first meeting of our constitutional law class. In a basement under an old chapel because the paint in the renovated lecture hall hadn’t dried yet. One hundred twenty five newbies squirming on folding chairs.

The thin, bearded professor said, ‘I trust you all read the first assignment posted on the bulletin board. So what is the importance of Marbury v. Madison?’

“Near the back,’ he said, pointing at us. ‘Please tell us about Marbury v. Madison.’

A short explanation. Then those magical words from the professor. ‘That’s right. That’s what the case was about. Very good.’

We’re not saying our first day of law school was the high point of our legal career. But it was close. To have survived an opening day question about Marbury v. Madison still seems like a miracle, a career-shaping crossroad.

It could have been much worse. Terrible in fact.

Like the first day performance by the fictional James Hart in the 1973 movie the Paper Chase.

Here’s Hart’s first contracts class with Professor Kingsfield:

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