Contra Barnett, judges don't kill parrots

Randy Barnett has a long post at Volokh Conspiracy arguing (with reference to his 2004 article on The Original Meaning of the Judicial Power) that "the 'judicial power' included the power to nullify unconstitutional laws." His basic claim is that "when the Supreme Court finds that a law is unconstitutional, under our system of government, that law is rendered null and void" (emphasis in original). He says that a judicially nullified law is like a dead parrot. Judicial review kills, and dead is dead. 

But we shouldn't need Miracle Max to help us realize that there's a big difference between mostly dead and all dead. Mostly dead is slightly alive. And when it comes to law, a judicial ruling of unconstitutionality does not always kill; sometimes it's just a flesh wound. 

Take Marbury v. Madison, for example. What is "that law" that this decision "rendered null and void"? The Judiciary Act of 1789? Just Section 13? Just part of Section 13? Or just certain applications of one part of Section 13? 

There is no right answer, because the question is wrong. The Supreme Court in Marbury did not render any particular law null and void. As far as the Court was concerned, the law was already void to the extent of its conflict with the Constitution, and it was the duty of the Court to refuse to give it effect as law in resolving the case. So the Court did just that; it refused to give effect to Section 13 of the Judiciary Act of 1789 because doing so in that case would have caused the Court to exceed its jurisdiction under Article III.

The reasons the Court gave for this refusal would require a similar refusal for every other attempt to secure a writ of mandamus from the Supreme Court in an exercise of original jurisdiction outside the limited categories of cases specified in the Distributing Clause of Article III. And as a matter of law, these reasons are to be given effect going forward by virtue of precedent and preclusion doctrine in addition to the intrinsic force they possess for participants in the legal system. But the Judiciary Act of 1789 itself underwent no change by virtue of the Court's ruling in Marbury. The Court declared the law void, but did not render the law void. Put another way, the Court recognized the constitutional conflict and refused to give effect to the statute, but it did not take the law and make it void.

For a contrast with the judicial nullification power described by Barnett (and the concept of judicial review supported by many many others), see the judicial displacement understanding set forth in my first law review article, Partial Unconstitutionality. Here's what I said there about Marbury v. Madison: 

The statutory grant of authority for the Supreme Court to issue writs of mandamus in the exercise of its original jurisdiction went beyond the Article III grant of original jurisdiction to the Supreme Court. As inferior law, the statutory grant was therefore unconstitutional to the extent that it went beyond Article III, but no further. The Judiciary Act of 1789 was still “law” to the extent that it was not “void.” The operative concept of judicial review here was one in which the Court, in disposing of the case before it, was obliged to apply the superior law of the Constitution in preference to conflicting, inferior statutory law: “If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.” Marbury v. Madison, 5 U.S. at 178.