Judicial Confusion

CNN legal anylyst Jeffery Toobin on Marbury v. Madison:

Courts, not Presidents, “deem” laws unconstitutional, or uphold them. “It is emphatically the province and duty of the judicial department to say what the law is,” Chief Justice John Marshall wrote in Marbury v. Madison, in 1803, and that observation, and that case, have served as bedrocks of American constitutional law ever since.

Ed Whelan on Toobin:

Properly understood, Marbury stands at most for the limited proposition that the courts, in exercising their judicial function, may review the constitutionality of statutes that they are asked to apply (the power of judicial review). As I’ve pointed out before, one good thing to come out of the American Bar Association’s badly confused report opposing presidential signing statements was liberal scholar Laurence Tribe’s acknowledgment that Marbury in no way establishes that the federal judiciary in general—or the Supreme Court in particular—is supreme over the President and Congress in determining what the Constitution means:  “presidents have never taken so wholly juricentric … a view of the constitutional universe—a view that certainly isn’t implied by the power of judicial review as recognized in Marbury v. Madison.” The Court itself didn’t assert the myth of judicial supremacy until 1958. And, as Abraham Lincoln put it in his First Inaugural Address:

[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

In short, Marbury simply doesn’t stand for what Toobin imagines it to stand for.

Still too many liberals (and conservatives for that matter) believe that Marbury established judicial supremacy.  But what about the oath the Executive takes to "solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States"?

And what about President Obama ordering his Department of Justice to halt supporting DOMA, a federal law?  I thought only the Supreme Court got to decide those questions???