Yes, one hears that phrase quite a bit, but how far back does the tradition actually go?
All the way back to the start, in fact.
You see, the first Chief Justice, John Marshall decided (along with a unanimous court) that it was the Supreme Court that had the power to determine whether or not something was "Constitutional" (in the particulars, he determined that the Constitution did not give his Court the power to act).
The power to declare law unconstitutional is not assigned to the Court in the Constitution. They 'made law' in order to have the ability to settle the case.
Funny how the truth outs itself, eh?
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