In a case addressing delays in implementing a school desegregation plan, the Supreme Court made a now infamous assertion of the doctrine of judicial supremacy—the idea that the Court’s constitutional interpretations are superior to that of the other two branches of government and therefore should not be questioned. The Court argued that the case of Marbury v. Madison established “the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution.”
The case is activist because the majority’s actions amount to judicial imperialism, expanding the judiciary beyond its constitutional limits. The judges clearly engaged in judicial hubris, making claims of judicial supremacy and judicial exclusivity that conflict with the Constitution The Constitution empowers all three branches of the government to faithfully interpret the Constitution, not just the judiciary, and the Constitution offers no support for the assertion that the judiciary’s interpretation are superior or constitute the last word.
The Court attempted to justify its radical understanding of the Court’s role by abusing precedent—in this case, perhaps the most famous case in the history of the Supreme Court—Marbury v. Madison. But Marbury said not a word about judicial supremacy or exclusivity. In fact, Marbury specifically articulated a limited judiciary: “The province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.” The Cooper Court engaged in precedential revisionism in order to arrogate power unto itself.