This book totally rules. There were parts of it that even gave me chills. No kidding. That’s how nerdy it’s getting around here right now. The author did this study as a PhD dissertation in history at the University of Virginia, and at the beginning, there is a dedication that says, “For Kay, for all the reasons.” Awwww! I totally ♥ this book. Not that I would necessarily recommend it to you, unless you have a particular hankering for knowing about Virginia’s early-nineteenth-century protests of Supreme Court review of state court decisions. I know, you’re probably asleep already. But it is so interesting, I’m telling you! Also! The “Cohens” in the title are referred to as the Cohen brothers! I’m pretty sure they’re related to the Coen brothers.
So, when the People first agreed to the Constitution, there was some talk of judicial review, but nobody put anything specifically into the Constitution about it. That is to say, the Constitution says that the Supreme Court can hear certain types of cases, but the Constitution doesn’t
say that the Court can tell everyone what the Constitution means. Later, the Court itself decided that it could tell everyone what the Constitution means. Then, during the same time that the Court decided that, it also decided that it could hear appeals from state courts if the appeal related to some kind of federal law.
This was a really big deal and is all prequel to this book. It is also a really cool exchange between the Virginia courts and the Supreme Court over the Martin v. Hunter’s Lessee
case. It’s not the most fascinating case to read, but the exchange is so fun. So, the case got appealed to the Supreme Court, and the Supreme Court said, “We can decide on this case, and Virginia is wrong.” Then, they sent the case back to Virginia to correct the errors, and Virginia said, “That’s nice that you think that, Supreme Court, but luckily for us, we don’t have to listen to you.” The Virginia opinion is so great. So, then the case went back to the Supreme Court, and they said, “Oh yes we can.” And, then, Virginia did like they were told.
At the risk of spoilering this book for you (because I’m sure you’re going to run out and read it right away), I’ll tell you what it’s about. The Cohens v. Virginia
case came after three other decisions where the Court had given itself and Congress a lot of power to “say what the law is.” In Cohens v. Virginia
, the Court said it could review state court decisions on criminal matters where they related to the Constitution or other federal law. The Court also said that Virginia was right in the way it had decided the case.
Virginia kind of freaked out, and there was talk of passing a state law saying that anyone who enforced a Supreme Court decision that conflicted with a state supreme court decision would be fined $1,000. There was a lot of talk. Ultimately, no one did anything, and the decision goes down in history as one of Justice John Marshall’s genius political moves. While he had taken a big chunk of power for the Supreme Court, he had upheld what the state court had done, so they didn’t really have anything to complain about.
I’m going to write about how that time in the history of judicial review is similar to the relationship between the Supreme Court and the International Court of Justice in relation to international lawsuits over the death penalty. The ICJ has ruled that state procedure in the U.S. violates an international treaty. The Supreme Court has basically said what Virginia said in ye olden days, “That’s nice, but luckily for us we don’t have to listen to you.” And in relation to this law, the ICJ has basically agreed. And I think it's true, too. But, what if, suddenly, the ICJ was like, "No, you do
have to listen to us"? It's interesting to speculate about what kind of enforcement power they would have.
Reading about all the fights that the bloggers newspapers had back in the day was one of those reminders that people basically stay the same, and the Supreme Court ends up with the power to say what the law is in the way that most meaningfully affects the People. It does make me wonder, though, how often it retains that power just by reaffirming the power of the states. Anyway, good book. If you ever write a paper on judicial review, I highly recommend it.