Academics (including me) usually applaud the historical game theoretic aspects of Marbury v. Madison. So much so that it's now a pretty standard judicial play. Doctrinally, hold that courts have jurisdiction to review the issue, but then decide against the particular claimant. That way you expand your power but minimize backlash; ergo, for example, entrenched judicial review.
But this morning's Ninth Circuit case highlighted for me, at least, the two downsides of this move. As applied to Marbury, those downsides would have been: (1) What about higher courts?, and (2) What about Marbury?
Neither of these problems were really central in Marbury itself. As for (1), there were, of course, no courts higher than the Supremes. And as for (2), from a systemic perspective, we also didn't much care about whether William Marbury was a Justice of the Peace as opposed to someone else. Especially as contrasted to the value of judicial review. So the Marbury move receives approval.
Here, Judge Berzon makes a classic Marbury move, and decides (1) that notwithstanding the typical judicial-review-stripping provisions increasingly prevalent in immigration cases, courts indeed retain the ability to review particular (relatively rare) determinations of "hardship" in some removal cases, but (2) the BIA was, in this particular case, right on the merits, since there was no hardship. (I'm not saying she manipulated the result to achieve this end, just that this is the same type of result as in Marbury.)
But here's the rub. Unlike Marbury, where you were worried about the reaction of the other branches of government, here, you've got your own branch to worry about as well. Which can decide to take the case on the doctrinal issue alone, wholly apart from the result. And often do so. So hosing the petitioner doesn't much insulte the mattter from review. (Not that there is, I think, much chance of this going up; rather, I'm talking more generally. Plus, I concede that the chances of review may diminish slightly if the lower court doesn't grant relief. Nonetheless, it's a big difference between the dynamic in Marbury.)
The other difference is that the consequences of the two cases are very different. Instituting judicial review (Marbury) is a pretty important goal. Saving judicial review in a very small subset of unusual removal cases, not so much. Similarly, Marbury's occupation, not really vital, probably even to Marbury. Whether Balbir Singh gets deported to India? Definitely critical to Singh, and of more lasting social concern generally as well.
In short, here's a case that's a lot like Marbury. Except that it's different. In ways that might shed some light on when and where that principle works.
