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I think we can go back to John Marshall for how this started. He had a long history of stating that some parts of a case were clearly obvious when they really weren't. In doing so, he could bypass the parts of a case that didn't fit his opinion without actually using valid law. Actually, the constitution doesn't give the Supreme Court equal power in the checks and balances system, but Chief Justice Marshall did a lot to expand the power of the court system. The only problem is that if you use strict constructionism to view the constitution, it isn't based in valid law.