over the other branches of the government with regard to questions of legal duty and constitutional interpretation. He had also avoided a confrontation with the executive branch that the Court would have lost.
Marshall established the use of the doctrine of judicial review by the Supreme Court, a doctrine which has never been questioned. Many also assert that he established a tradition of judicial activism on the part of the Court, a tradition which has waxed and waned over the decades. He adopted judicial review by the Court without relying upon any precedent by the Court, denying it to the other branches. It is somewhat remarkable that the decision in Marbury was never challenged. However, the precedent of judicial activism established in Marbury has been challenged over the years.
John Hart Ely has described the debate over judicial activism as interpretivism versus non-interpretivism. He says that interpretivism refers to the idea that judges deciding constitutional issues should restrict themselves to enforcing norms that are stated or clearly implicated in the written Constitution. Non-interpretivism, naturally, refers to the idea that
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