A Matter of Power: Structural Federalism and Separation Doctrine in the Present

Public reaction to the 1823 Supreme Court decision in Green v. Biddle prompted John Marshall's letter to Henry Clay, who had argued the case as amicus curiae for the defendant. The letter is significant because Marshall, who had been a legislator himself, candidly expresses not only his personal dissatisfaction with the congressional assault on the 1823 decision but also the constitutional basis for his opinion. The significance of Marshall's extrajudicial opinion becomes more apparent when it is considered in the aftermath of the recent tug-of-war between Congress and the Court which culminated in the decision in City of Boerne v. Flores of last term. In Boerne, as in Green v. Biddle, congressional attacks were attempts to control the judicial decision making process, and in each instance Congress attacked not only the decision, but also the authority of the Court.