NewYorkUniversity
LawReview

Issues

Author

The Honorable David S. Tatel

Results

Judicial Methodology, Southern School Desegregation, and the Rule of Law

The Honorable David S. Tatel

Madison Lecture

Americans have fiercely debated the proper role of Article III courts in our constitutional system ever since Chief Justice John Marshall declared in Marbury v. Madison that it is “emphatically the province and duty of the judicial department to say what the law is.”‘ This debate often has focused on Supreme Court decisions involving some of our nation’s most historic events: the Court’s 1873 evisceration of the Fourteenth Amendment’s Privileges or Immunities Clause, its use of substantive due process to strike down progressive legislation at the turn of the century, its invalidation of key New Deal programs, and its opinion in Roe v. Wade are but a few of the decisions that have reignited the controversy over the meaning and risks of “judicial activism.”