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06/25/2017

Greg Weiner on the Role of the Court in the Travel Ban Cases
Michael Ramsey

Greg Weiner at Law and Liberty: Return to Marbury. From the introduction:

The travel ban case is headed to the Supreme Court by way of the once redoubtable Fourth and always activist Ninth Circuits, leaving revisionists to wonder how it might have unfolded had it made its way upward through Judge William H. Pryor’s Eleventh. Pryor’s view of the judicial role exhibits appropriate assertiveness within its sphere and a fitting humility beyond it.

Pryor’s perspective might consequently help advocates of judicial engagement and restraint move beyond one of the central difficulties in their disagreement, which is the tendency to veer into judicial supremacy in the former case and impotence in the latter. The travel ban illustrates one dimension of the problem, which is what happens when a court issues a ruling other branches believe impinges on their authority. Would the Trump Administration be immovably bound by it?

Recently in this space, I argued that constitutional meaning was liquidated by conversation between the branches rather than by the discrete and final view of the courts, with the judiciary considered as the last stop on a temporal line. I stand by that conclusion, but Pryor’s writings provide a subtler and richer account of the judicial role.

The account begins where I erred, which was in a truncated and flawed account of Marbury v. Madison. Using Marbury as an illustration of how presidents and courts once confronted each other more forthrightly, I repeated the strain of scholarship that holds that Chief Justice Marshall willfully misread Article III of the Constitution in order to avoid a confrontation with President Jefferson while manufacturing grounds for establishing the power of judicial review.