Marbury and Judicial Sovereignty Over the Constitution

Does Marbury v. Madison mean that when the Supreme Court’s view of the Constitution differs from that of Congress or the President, the Supreme Court’s view always prevails?

Let’s take a hypothetical.

Suppose the Supreme Court decides Plessy v. Ferguson which held that racially segregated facilities were not unconstitutional (separate but equal decision).

Now suppose Congress passes a law that provides for racially segregated public facilities. The President vetoes this law on the ground that he believes the law is unconstitutional.

Is this permissible?


Now suppose a second hypo.

The hypo concerns abortion – now in Roe v. Wade, the Supreme Court held basically two things:

1. that an unborn child is not a “person” entitled to a right to life and equal protection under the Fourteenth Amendment; and

2. that a pregnant woman has a constitutional right to choose abortion for any reason.

That was the law according to the Supreme Court. Dobbs overruled Roe.

But let’s suppose the President disagrees – suppose the President believes that an unborn child is a “person” whose right to life is protected and that there is no constitutional right to abortion. Does the Court’s view govern over the President’s view?

It depends.

If the President signs into law Congressional legislation outlawing most abortions, what result?

The Court will strike the law down as unconstitutional and Marbury v. Madison would support the Court’s power to invalidate this law.

Now, suppose a different piece of legislation – suppose Congress passes the so-called Freedom of Choice Act which codifies Roe v. Wade and expressly immunizes abortion against restrictions enacted by state legislatures. The bill reaches the President’s desk and the President vetoes the bill on the grounds that the law is unconstitutional because the unborn child is a person entitled to the right to life.

Is this unconstitutional?