The Supreme Court's Power: Judicial Review Explained

Judicial review is the power of the courts of a country to examine the actions of the legislative, executive, and administrative arms of the government and to determine whether such actions are consistent with the constitution. While the concept of judicial review was already established at the time of the Founding, the first American decision to recognize the principle of judicial review was Bayard v. Singleton, decided in 1787 by the Supreme Court of North Carolina's predecessor. The North Carolina court and its counterparts in other states treated state constitutions as statements of governing law to be interpreted and applied by judges. In the federal system, courts may only decide actual cases or controversies; it is not possible to request the federal courts to review a law without at least one party having legal standing to engage in a lawsuit. Judicial review is one of the distinctive features of United States constitutional law.

Explore related products

The People Themselves: Popular Constitutionalism and Judicial Review

$45.51 $48.99

Democracy and Distrust: A Theory of Judicial Review (Harvard Paperbacks)

$27.77 $36

The Rise of Modern Judicial Review: From Judicial Interpretation to JudgeMade Law,

$63 $63

Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review

$25.58 $37.99

Marbury v. Madison : The Origins and Legacy of Judicial Review

$29.99 $99.99

Judicial Review in an Objective Legal System

$34.38 $45

Judicial review's constitutional basis

Judicial review is the power of the courts of a country to examine the actions of the legislative, executive, and administrative arms of the government and determine whether such actions are consistent with the constitution. If they are inconsistent, they are declared unconstitutional and, therefore, null and void.

While the concept of judicial review was already established at the time of the US Founding, the US Constitution does not expressly grant federal courts the power to declare government actions unconstitutional. However, it clearly infers it. For example, Article III Section 1 vests the judicial power in the courts, and Article VI contains the supremacy clause, which establishes the Constitution as the supreme law of the land and binds judges to it.

In Marbury v. Madison, the first Supreme Court decision to strike down an act of Congress as unconstitutional, Chief Justice John Marshall stated that the courts are authorized by the provisions of the Constitution itself to "look into" the Constitution, interpret and apply it, and refuse to enforce any laws contrary to it. Marshall concluded:

> Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.

In some countries, such as France, Germany, New Zealand, and South Africa, only specialized constitutional courts can hear claims of unconstitutionality. In contrast, in the US, all courts have the power to entertain such claims.

Judicial review vs. legislative power

Judicial review is the power of the courts to examine the actions of the legislative, executive, and administrative arms of the government and determine whether they are consistent with the constitution. If a law is deemed inconsistent with the constitution, it is declared unconstitutional and therefore null and void. This power of the judiciary acts as a check on the legislature, protecting against excessive exercise of legislative power.

While the US Constitution does not explicitly define the power of judicial review, it has been inferred from its structure, provisions, and history. The first American decision to recognize the principle of judicial review was made in 1787 by the Supreme Court of North Carolina's predecessor. However, the concept of judicial review was already established at the time of the Founding, with the Privy Council employing a limited form of judicial review to review colonial legislation.

The Federalist Papers, published in 1787-1788, made several references to the power of judicial review, with Alexander Hamilton clearly explaining that the federal courts would have this power. Hamilton argued that the courts were designed to be an intermediate body between the people and the legislature, protecting the people against abuse of power by Congress. James Madison and other Framers also asserted the power of judicial review.

In 1803, John Marshall, the fourth chief justice of the United States, asserted in Marbury v. Madison that the Supreme Court had the power to invalidate legislation enacted by Congress. This case arose when William Marbury filed a lawsuit against James Madison, the Secretary of State, seeking an appointment as a justice of the peace. The Supreme Court unanimously ruled in Marbury's favor, marking the first time the Court struck down an act of Congress as unconstitutional.

In the United States, all courts have the power to entertain claims of unconstitutionality. However, in some countries, only specialized constitutional courts can hear such claims. For example, France, Germany, and South Korea have established constitutional councils or courts to conduct judicial reviews.

In conclusion, judicial review serves as a crucial check on legislative power by ensuring that the actions of the government are consistent with the constitution. While the US Constitution does not explicitly grant this power to the courts, it has been inferred from the text and historical context. The power of judicial review has been recognized and utilized by the Supreme Court in landmark cases such as Marbury v. Madison, shaping the constitutional landscape of the United States.

Judicial review in other countries

Judicial review is considered a key check on the powers of the other two branches of government by the judiciary. The concept of separation of powers was first introduced by Montesquieu and was later institutionalized in the United States by the Supreme Court's ruling in Marbury v. Madison, which asserted the court's power of judicial review to enforce the separation of powers stated in the US Constitution.

In the United Kingdom, judicial review is carried out by regular civil courts, although it may be delegated to specialized panels within these courts, such as the Administrative Court within the High Court of England and Wales. The UK first accepted a robust form of judicial review in the context of the European Union, which paved the way for the introduction of the Bill of Rights Acts.

Many countries whose legal systems are based on the idea of legislative supremacy have gradually adopted or expanded the scope of judicial review, including countries from both the civil law and common law traditions. After World War II, many countries felt pressured to adopt judicial review due to the influence of US constitutional ideas, particularly the idea of checks and balances. This led to the creation of special constitutional courts in Germany, Italy, and South Korea, while India, Japan, and Pakistan set up supreme courts to exercise judicial review in the manner generally used in the United States and the British Commonwealth.

In some countries, such as France, Germany, New Zealand, and South Africa, only specialized constitutional courts can hear claims of unconstitutionality. In contrast, all courts in the United States have the power to entertain such claims. In Austria, Germany, South Korea, and Spain, courts can exercise judicial review only after a law has taken effect, and they can do so in abstract or concrete cases.

Explore related products

Responsive Judicial Review: Democracy and Dysfunction in the Modern Age (Oxford Comparative Constitutionalism)

$27.99 $130

Rights Reign Supreme: An Intellectual History of Judicial Review and the Supreme Court

$45.69 $49.95

Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present (Constitutional Thinking)

$24.57 $37.99

Marbury v. Madison: The Origins and Legacy of Judicial Review (Landmark Law Cases and American Society)

$21.95 $29.99

A Common Law Theory of Judicial Review: The Living Tree (Cambridge Studies in Philosophy and Law)

$52.25 $55

Marbury v. Madison and Judicial Review

$34.99 $37.99

Judicial review and the Supreme Court

Judicial review is the power of the courts of a country to examine the actions of the legislative, executive, and administrative arms of the government and to determine whether such actions are consistent with the constitution. It is one of the distinctive features of United States constitutional law.

The concept of judicial review was already established at the time of the Founding. The Privy Council had employed a limited form of judicial review to review colonial legislation and its validity under the colonial charters. The first American decision to recognize the principle of judicial review was Bayard v. Singleton, decided in 1787 by the Supreme Court of North Carolina's predecessor.

The judicial power of the United States, as per Article III, Section 1, is vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. While the Constitution does not expressly grant federal courts the power to declare government actions unconstitutional, the power to do so has been deemed an implied power, derived from Article III and Article VI of the U.S. Constitution.

Article III, Section 2, of the Constitution gives Congress the power to make exceptions to the Supreme Court's appellate jurisdiction, and thus, Congress may have the power to make some legislative or executive actions unreviewable. This is known as jurisdiction stripping.

In the federal system, courts may only decide actual cases or controversies. It is not possible to request the federal courts to review a law without at least one party having legal standing to engage in a lawsuit. In some state courts, such as the Massachusetts Supreme Judicial Court, legislation may be referred in certain circumstances by the legislature or by the executive for an advisory ruling on its constitutionality prior to its enactment or enforcement.

Judicial review and the Founding Fathers

Judicial review is the power of the courts of a country to examine the actions of the legislative, executive, and administrative arms of the government and to determine whether such actions are consistent with the constitution. If they are not, these actions are declared null and void.

The concept of judicial review was already established at the time of the Founding Fathers. The Privy Council had employed a limited form of judicial review to review colonial legislation and its validity under the colonial charters. There were also several instances of state court invalidation of state legislation on the grounds of inconsistency with state constitutions.

During the ratification process, supporters and opponents of ratification published pamphlets, essays, and speeches debating various aspects of the Constitution. Publications in at least twelve of the thirteen states asserted that under the Constitution, the federal courts would have the power of judicial review. There is no record of any opponent to the Constitution claiming that the Constitution did not involve a power of judicial review. The Federalist Papers, which were published in 1787–1788 to promote ratification of the Constitution, also made several references to the power of judicial review.

Alexander Hamilton, one of the Founding Fathers, wrote about the interpretation of laws and the role of the courts:

> "A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."

The first American decision to recognize the principle of judicial review was Bayard v. Singleton, decided in 1787 by the Supreme Court of North Carolina's predecessor. The North Carolina court and its counterparts in other states treated state constitutions as statements of governing law to be interpreted and applied by judges.

In 1803, the issue of judicial review was definitively decided in Marbury v. Madison. John Marshall, the fourth chief justice of the United States, asserted that the courts are authorized by the provisions of the Constitution itself to "look into" the Constitution, that is, to interpret and apply it, and that they have the duty to refuse to enforce any laws that are contrary to the Constitution.

Frequently asked questions