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Georgetown Journal of Law & Public Policy


judicial activism, judicial review, Progressive movement, Marbury v. Madison


Abraham Lincoln understood judicial activism. For Lincoln, the paradigm of the unrestrained Supreme Court was the decision in Dred Scott v. Sandford. Lincoln saw the "illegitimacy" of Dred Scott not in that the Supreme Court had overturned an act of Congress. It was, rather, that the Supreme Court, in the guise of making a legal decision, instead made a political decision. Even worse, it was a political decision that sought to redefine the polity in fundamental, constitutional terms. Lincoln's position echoed the most eloquent articulation of judicial review ever made by the Court: in Marbury vs. Madison, Chief Justice Marshall articulated the fundamental principles that would guide the Court's authority and define what defenses were available to one branch of the federal government against the incursion of another. The Court should stay true to its position in the Constitution and under the Constitution. It has a legal identity, not a political one. Legally invalid statutes must be struck down. But political decision-making, social reform, and administrative supervision of the American people are functions belonging to the other branches of government.