Judicial Review

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.

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 power of judicial review was granted to the courts by the Supreme Court in the 1803 Supreme Court case, Marbury v. Madison.

Fig. 2, John Marshall, Wikimedia Commons

Judicial Review Example

Since 1789, the Supreme Court has overturned many laws and executive actions.

• In 1967, in Loving v. Virginia, the Supreme Court ruled that state laws prohibiting interracial marriage were unconstitutional and in violation of the equal protection clause of the 14th Amendment.

• In 2015, the Supreme Court ruled in Obergefell v Hodges that state laws prohibiting same-sex marriage were in violation of the 14th Amendment’s due process clause.

• In the 2010 decision Citizens United v. Federal Election Commission, the Supreme Court struck down a federal election law that restricted spending on election advertising by corporations and other associations.

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

1. Theories of Constitutional Interpretation, http://law2.umkc.edu/faculty/projects/ftrials/conlaw/interp.html.