100 for the Court’s decision. The Chief Justice had gauged the political situation correctly: He knew the Court could not issue an order opposing the popular new President and his Secretary of State; instead, he set down for posterity his vision of the proper relationship between the judicial and the executive and legislative branches and established the theoretical basis for the practice of judicial review. In the years since Marbury was decided, however, the Court has not always been mindful of the political situation confronting it. It has sometimes issued decisions it knew would not be obeyed, deeming it important to make its opinion known anyway. The most notorious case of this kind occurred in 1861, during the Civil War, when Chief Justice Roger Taney, acting as a circuit judge, declared President Lincoln’s suspension of the writ of habeas corpus unconstitutional and sent a copy of his opinion to the President {Exparte Merryman. Fed. Cases, No. 9, 487 [1861]). The opinion contained a ringing defense of American liberties, but it failed to win the support of the Lincoln Administration or the people of the Union, who agreed with Lincoln that it would be better for the President to violate one law than to have the Union destroyed because of failure to suppress the rebellion. Although Taney’s opinion created a useful precedent for future citation, the President’s action in ignoring Taney’s order supplied future executives with even more powerful precedent. What this history demonstrates is that if the Supreme Court adheres to constitutional ideology without taking into consideration the political imperatives motivating the Executive and Congress, constitutional confrontation and possible disaster can easily follow. Even after a hundred fifty years of experience, in the twentieth century during the New Deal era, the United States barely avoided what could have been a revolutionary situation when the Supreme Court insisted on exercising its prerogative of judicial reviewaccording to the dictates of the justices’ outmoded economic and political views. In the face of a united President and Congress, who had the overwhelming support of the American people, the Supreme Court in the mid-thirties thwarted the Roosevelt Administration’s plans for economic recovery by declaring a number of important laws passed by Congress unconstitutional. Only after an exhausting and futile attempt by President Roosevelt to “pack” the Court, that is, increase the number of judges on the Supreme Court to offset those who opposed the Roosevelt plan, did members of the Court begin to see the NewDeal laws in a different light, and to uphold their constitutionality. This famous “switch in time” avoided what could have been a very serious constitutional crisis. Thus, in the course of two centuries, it has been the Court’s willingness by and large to performits function of judicial reviewwithin boundaries approved by the American people that has led to the success of the American system of government. The Constitution created the blueprint for government: three branches separate and independent, but not totally so. As Nathaniel Gorham,
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