Why might modern day critics of the Supreme Court call Marshall an “activist judge?”
To a great extent, the claim of "judicial activism" might be be seen in relative contexts. For example, Marshall might not be necessarily seen as much as an activist as Chief Justices such as Warren or Burger, or even Taney. Yet, in his time and for what he did, Marbury was an activist. The power and assertive value of the Supreme Court had not been fully articulated prior to Marshall. Chief Justice Marshall understood this and became seen as the master builder of the Supreme Court with his decision Marbury v. Madison. The decision clearly established the powers of the Supreme Court and, in doing so, clearly defined an element of checks and balances, ensuring that the Supreme Court had the power to declare an act or law unconstitutional through the power of Judicial Review. The idea of judicial activism as a domain whereby the court is seen as an agent of change is something that Marshall represented in seeking to redefine the role and function of the Supreme Court. Marshall did not resign himself to a conservative read of the court when confronted with the opportunity to redefine how the Court could play a role in the federal government. In recognizing this moment and ensuring that his decision reflected it, I think that that one can see the tenets of judicial activism present.