Many conservatives have been outraged over judicial activism in America's courts. That is why they were relieved when President Bush said his Supreme Court nominees would not legislate from the bench.
Judicial activism may seem like a relatively new concept, but it actually began more than 200 years ago in a very famous case that changed the court and American history.
Since the very first Supreme Court in 1789 until now, there have been 108 justices. In the early days, their power was limited - but that would all change with the 1803 decision of Marbury v. Madison.
Marbury v. Madison marked the first time the United States Supreme Court declared a federal law unconstitutional. Chief Jjustice John Marshal, who wrote the opinion, declared it was the duty of the judicial branch to determine what the law is. His opinion established the power of judicial review, the court's authority to declare laws unconstitutional.
Professor Jim O'Hara of the Supreme Court Historical Society said, "President Thomas Jefferson was infuriated when John Marshall, the chief justice, wrote the opinion Marbury v. Madison... Jefferson thought it was anti-democratic, he thought it was a terrible precedent to set, but that precedent's been with us ever since."
“To indicate its importance, virtually every law school in this country begins constitutional law courses, not with the Declaration of Independence, not by reading the Constitution, but by reading the text authored by the chief justice in Marbury v. Madison," said Regent University law professor Dr. Barry Ryan.
Prior to Marbury v. Madison, Congress was so upset with the court that it actually suspended its sessions for an entire year.
"Both houses of Congress felt that if the Supreme Court actually met, that they were likely to overturn a law that Congress did not want overturned,” explained O’Hara, “so they actually suspended a whole year, and when the court came back, it turns out they didn't overturn the law after all."
What is interesting is that the doctrine of judicial review was not used again until 1857, 54 years later, in the infamous case of Dred Scott. Ryan argues that the Dred Scott decision, in which the Supreme Court basically upheld slavery as constitutional, ushered in the Civil War.
“It's not too much of a stretch to say that what happened was the Civil War, because there was such a divide in this country following that decision,” Ryan stated.
Over the years instances of judicial activism--for good or ill-- have only increased. Some of the more famous cases include:
1954's Brown v. Board of Education, in which the high court overturned segregation in public schools; 1973's Roe. v. Wade decision that legalized abortion; and most recently in 2003, Lawrence v. Texas, where the Supreme Court wiped out laws against sodomy and declared homosexual sex is a protected right under the U.S. Constitution.
Although instances of judicial activism were rare in the early days, O'Hara said those days are gone.
"The Supreme Court is likely to find a law, or some portion of a law, unconstitutional every term, and maybe several times a term,” O’Hara said. “ In a sense, I guess you could say that the trend has been toward activism."
Ryan said, "I think that even John Marshall (who is, in many ways, the architect of this) would be shocked and horrified to see how far things had gone, and how we had carried this and what has come to be called ‘judicial activism,’ to an incredible extreme."