Judicial review hasn’t been controversial for 200 years

University of Chicago law professor Cass Sunstein has a tremendous piece in the LA Times today, arguing among other things, “What we are seeing, for the first time, is a fundamental challenge to the rule of law itself.” Sunstein was referring, of course, to the recent efforts launched by today’s Republican crusaders against the federal judiciary.

Was Sunstein being overdramatic? Hyperbolic, perhaps? I’d argue not. Exhibit A:

Washington Times reporter Stephen Dinan: “You’ve been talking about going after activist judges since at least 1997. The [Terri] Schiavo case gives you a chance to do that, but you’ve recently said you blame Congress for not being zealous in oversight.”

Tom DeLay: “Not zealous. I blame Congress over the last 50 to 100 years for not standing up and taking its responsibility given to it by the Constitution. The reason the judiciary has been able to impose a separation of church and state that’s nowhere in the Constitution is that Congress didn’t stop them. The reason we had judicial review is because Congress didn’t stop them. The reason we had a right to privacy is because Congress didn’t stop them.” (emphasis added)

Consider the significance here. The Majority Leader of the House of Representatives is lamenting the fact that the federal judiciary has the authority to review laws passed by Congress and, when appropriate, find them unconstitutional. That’s what “judicial review” is. It was established over 200 years ago by Chief Justice John Marsall in a little case called Marbury v. Madison. This is part and parcel of the American system of government — and Tom DeLay isn’t shy about expressing his disappointment about it.