John Marshall is one of my heroes. His jurisprudential steadfastness and
political adroitness combined to make the Federal judiciary in general and
the Supreme Court in particular coequal with the Congress and the
Executive branch. From Marbury through Barron the Chief Justice defined
the very meaning of Federalism, and, in consequence, created the most
independent, powerful judiciary in the world. This is John Marshall's legacy,
and so, too, is legal formalism.

As an undergraduate in my course in American Constitutional Law,
Christopher Faille probably tired of the emphasis that I place on Marshall
as the key to unlocking the vast power which the Federal judiciary enjoys, a
power negatively evidenced only once in the nineteenth century in the
infamous Dred Scott case in 1857. Associate justices were appointed by
presidents and confirmed by the Senate rather routinely: the American Bar
Association was not asked to inquire about the credentials of nominees to
the Federal judiciary. Indeed, the Federal judiciary generally mirrored
American life. Probably the one most important exception was the dissent
of Associate Justice John Marshall Harlan in Plessy. But during the
Roosevelt administration, things changed.

The Supreme Court in particular began to become politicized. What one
thought about Constitutional issues would perhaps become votes on the
Supreme Court for those very same issues. Thus began legal realism, a
concept which Faille describes as a judicial response to the failure of
legislative/executive action, and more. The Federal judiciary becomes, in
effect, a law-making and executing body, doing what the other two branches
are fearful or unwilling to do. Correctly, Faille observes in Chapter 9 that,
"The Court ought to walk with small steps through a field of broken glass."
To do more at this point in time would rather diminish the authenticating
function of the Court.

-ix-