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Establishment

When John Marshall followed Oliver Ellsworth as chief justice of the Supreme Court in 1801, the federal judiciary had been established by the Judiciary Act, but there were few cases, and less prestige. "The fate of judicial review was in the hands of the Supreme Court itself." Review of state legislation and appeals from state supreme courts was understood. But the Court's life, jurisdiction over state legislation was limited. The Marshall Court 's landmark Barron v. Baltimore held that the Bill of Rights restricted only the federal government, and not the states.

In the landmark Marbury v. Madison case, the Supreme Court asserted its authority of judicial review over Acts of Congress. Its findings were that Marbury and the others had a right to their commissions as judges in the District of Columbia. Marshall, writing the opinion for the majority, announced his discovered conflict between Section 13 of the Judiciary Act of 1789 and Article III. In this case, both the Constitution and the statutory law applied to the particulars at the same time. "The very essence of judicial duty" according to Marshall was to determine which of the two conflicting rules should govern. The Constitution enumerates powers of the judiciary to extend to cases arising "under the Constitution". Further, justices take a Constitutional oath to uphold it as "Supreme law of the land." Therefore, since the United States government as created by the Constitution is a limited government, the federal courts were required to choose the Constitution over congressional law if there were deemed to be a conflict.

"This argument has been ratified by time and by practice..." The Supreme Court did not declare another act of Congress unconstitutional until the controversial Dred Scott decision in 1857, held after the voided Missouri Compromise statute had already been repealed. In the eighty years following the Civil War to World War II, the Court voided congressional statutes in 77 cases, on average almost one a year.

A crisis arose when, in 1935 and 1936, the Supreme Court handed down twelve decisions voiding acts of Congress relating to the New Deal. President Franklin D. Roosevelt then responded with his abortive " court packing plan ". Other proposals have suggested a Court super-majority to overturn Congressional legislation, or a constitutional amendment to require that the justices retire at a specified age by law. To date, the Supreme Court's power of judicial review has persisted.