Let's say the branches of government were superheroes. We might say that the Executive Branch is Captain America, the Legislative Branch is Dr. Strange, and because of the power of Judicial Review, the Judicial Branch is the Hulk. The Judicial Branch’s power of Judicial Review is a Hulk Smash power! Judicial review is a central concept in understanding the Judicial Branch, so let’s dive in and learn.
Judicial Review Definition
Judicial review is the power of the courts to determine if an act of Congress or the Executive branch is constitutional. The court may strike down a law or an executive action that is not in accord with the U.S. Constitution.
Fig. 1, Supreme Court, Wikimedia Commons
Power of Judicial Review
In the United States, the Supreme Court has the power to make policy that affects people’s everyday lives. For example, the 1954 decision in Brown v. Board of Education resulted in the desegregation of public schools across the country.
The power of the courts in the United States is demonstrated through judicial review. In the United States, federal and state courts may strike down any law or act of the executive branch if they determine them to be in violation of the U.S. Constitution. Judicial Review is the superpower of the courts.
Judicial Review is not mentioned in the Constitution, but Alexander Hamilton advocated for the power of judicial review in the foundational document, Federalist 78. Hamilton writes that the courts should have the power to check the legislative branch by determining whether acts are in violation of the Constitution: the supreme law of the land.
“The interpretation of the laws is the proper and peculiar province 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 the two…the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”
Federalist Papers: A set of 85 essays written by Alexander Hamilton, John Jay, and James Madison urging ratification of the U.S. Constitution.
Judicial Review and the Constitution
The Constitution is the supreme law of the land, but someone has to determine what precisely the text means. It is the job of the Judicial Branch to interpret the U.S. Constitution when disagreements arise. However, nowhere in the constitution does it mention that the Judicial Branch has the power of judicial review.
Article III of the constitution outlines and describes the power of the Judicial Branch, and it is the shortest article describing a branch of government. Section I simply describes the general overview of the court:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."
The power of judicial review was granted to the courts by the Supreme Court in the 1803 Supreme Court case, Marbury v. Madison.
Before becoming Chief Justice of the Supreme Court, John Marshall was John Adams’ Secretary of State. On Adams’ last day in office, he asked his Secretary of State to deliver commissions of appointments to 17 people, including William Marbury. Marbury was to be appointed as a justice of the peace in Washington D.C.
Marshall failed to deliver the commissions and left them for the new incoming Secretary of State, James Madison. Madison refused to deliver the commission, and Marbury sued him, asking the Supreme Court to order Madison to give him his commission. Marbury and three others claimed the Judiciary Act of 1789 gave the Supreme Court original jurisdiction in the matter.
You can say that the new Chief Justice was extremely familiar with the facts of the case, as he was right in the middle of the dispute. Not only did the justices side with Marbury and determine that Madison was wrong to withhold the commissions, but they went further. The court ruled the Judiciary Act of 1789 unconstitutional.
In this seminal case, Chief Justice John Marshall and the associate justices unanimously asserted the right of the Supreme Court to determine the constitutionality of laws and acts of the executive. Judicial Review was born.
Original jurisdiction: the jurisdiction of a court to hear a case for the first time
Fig. 2, John Marshall, Wikimedia Commons
Judicial Review Example
Since 1789, the Supreme Court has overturned many laws and executive actions.
The Principle of Judicial Review
The United States government is a system of checks and balances and separation of powers. The Judicial Branch is an independent branch of government with the power to check the legislative and executive branches through the powerful judicial practice of judicial review. The principle of judicial review is important because the power gives the judicial branch the means to ensure that the other two branches are upholding and complying with the U.S. Constitution.
Process of Judicial Review
Very few Americans would argue that judicial review in itself is controversial. It is essential for the structure of our government that there be three distinct branches that can check each other so that no one branch becomes too powerful. The Judicial Branch checks the legislature and the executive through the practice of judicial review.
It is often the process of judicial review that is controversial, because this process is subject to differing philosophies of constitutional interpretation: Judicial Restraint and Judicial Activism.
Judicial Restraint
On one side are those who favor a strict constructionist approach that emphasizes judicial restraint. Strict constructionists believe that judges should not create policy and instead only judge limiting themselves to applying rules clearly stated in the Constitution. This approach to decision-making limits policymaking decisions by judges, instead relying on precedent and legislatures.
Judicial Activism
On the other side are those who advocate for judicial activism: the belief that the Constitution is a living document and that judges should be free to make policy and alleviate needs and correct instances of discrimination that are ignored in the political process.
| Examples of Originalist Judges | Examples of Non-Originalist Judges |
| Justice Hugo Black | Justice Harry Blackmun |
| Justice Antonin Scalia | Justice William Brennan |
| Justice Clarence Thomas | Justice William O. Douglas |
| Judge Robert Bork | Judge Richard Posner |
1Judicial Review - Key takeaways
- The definition of judicial review is the power of the courts to determine if an act of Congress or the Executive is constitutional. The court may strike down a law or an executive action that is not in accord with the U.S. Constitution.
- The United States government is a system of checks and balances and separation of powers. The Judicial Branch is an independent branch of government with the power to check the legislative and executive branches through the powerful judicial practice of judicial review.
- The power of judicial review was granted to the courts by the Supreme Court in the 1803 Supreme Court case, Marbury v. Madison.
- Three examples of judicial review include Loving v. Virginia, Citizens United v. F.E.C., and Obergefell v. Hodges.
- Two approaches to judicial decision-making are judicial restraint and judicial activism.
1. Theories of Constitutional Interpretation, http://law2.umkc.edu/faculty/projects/ftrials/conlaw/interp.html.
References
- Fig. 1, Supreme Court (https://commons.wikimedia.org/wiki/Supreme_Court_of_the_United_States#/media/File:Supreme_Court_Front_Dusk.jpg) by Noclip at en.wikipedia, In Public Domain
- Fig. 2, John Marshall (https://commons.wikimedia.org/wiki/File:John_Marshall_by_Henry_Inman,_1832.jpg) by Henry Inman, In Public Domain
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