TRUMP’S UNSTABLE NEW HIRE
The acting attorney general of the United States is a crackpot.
Matthew Whitaker, installed in the job by President Donald Trump to replace Jeff Sessions, was asked in 2014 about the worst decisions in the Supreme Court’s history. Whitaker’s answer was chilling.
“There are so many,” he replied. “I would start with the idea of Marbury v. Madison. That’s probably a good place to start and the way it’s looked at the Supreme Court as the final arbiter of constitutional issues. We’ll move forward from there. All New Deal cases that were expansive of the federal government. Those would be bad. Then all the way up to the Affordable Care Act and the individual mandate.”
Reasonable people can differ over the constitutionality of the Affordable Care Act. Maybe there’s some space to debate the New Deal-era cases that cemented the authority of the regulatory state. But Marbury?
Decided in 1803, at the dawn of the new republic, Marbury v. Madison is the foundational case of American constitutional law. It represents Chief Justice John Marshall’s declaration that the Supreme Court possesses the ultimate power to interpret the Constitution and determine the legitimacy of acts of Congress.
In Marshall’s famous words, “it is emphatically the duty of the judicial department to say what the law is.” The untested new Constitution provided that the Supreme Court possessed the “judicial Power of the United States,” but it did not define what that power entailed.
“With one judgment ... Marshall would chisel judicial review into the American system,” Cliff Sloan and David McKean explain in their book, “The Great Decision.” The ruling, “asserting clearly and unequivocally that the Supreme Court did indeed possess the power to strike down an Act of Congress as unconstitutional ... laid the foundation for the American rule of law.”
This is not a controversial position, at least in mainstream legal thought.
More commonly, Marbury is the uncontested subject of lavish judicial praise. Chief Justice John Roberts endorsed it during his confirmation hearings, and he expanded on that view in a 2006 C-SPAN interview. Marshall’s decision meant “we have the courts to tell what [the Constitution] means and what’s binding on other branches,” Roberts said, “and that important insight into how the Constitution works has been, I think, the secret to its success.”
But if you think, as Whitaker seems to, that Roberts is too much of a squish, consider Roberts’s predecessor as chief justice,
William Rehnquist. In his book on the Constitution, Rehnquist described Marbury as “the linchpin of our constitutional law.”
Or consider Justice Brett Kavanaugh’s comments during his confirmation hearings, describing Marbury as among the “four greatest moments in Supreme Court history.”
Yet we seem to have, as the nation’s chief law enforcement officer, a man who begs to differ. If this is still his position, how does that view — that the court in Marbury was too assertive in exercising its power — square with Whitaker’s simultaneous belief that the court was inadequately assertive in striking down laws during the later New Deal era and when dealing with the Affordable Care Act?
That’s not the only troubling question about Whitaker. During a 2014 Senate debate he said that in helping confirm judges, “I’d like to see things like their worldview, what informs them. Are they people of faith? Do they have a biblical view of justice? — which I think is very important.”
“And what I know is as long as they have that worldview, that they’ll be a good judge. And if they have a secular worldview, then I’m going to be very concerned about how they judge.”
Marbury was wrong. Religious tests for judges. If you thought the big worry about Whitaker was how he would handle special counsel Robert Mueller, that might be just the beginning.