Judicial Review: a short overview from ABC CLIO GOVERNMENT
It's Out of Here!
Judicial review permits the U.S. Supreme Court to determine whether a national or state law is constitutional. It also gives
the Supreme Court the authority to rule whether the president's actions are constitutional. If the Court determines a law
or an action unconstitutional, that law or action may not be enforced.
If it were not for judicial review, the United States would have over 1,000 unconstitutional laws on the books. Over the
years, Congress and presidents have passed laws that were not permitted by the strict standards of the U.S. Constitution.
Such laws are often due to an oversight. The doctrine of judicial review is there to catch those oversights and to strike
those unconstitutional laws from the books.
Not in the Constitution
The doctrine of judicial review is nowhere to be found in the Constitution. The Supreme Court decided to make it part of
its work to review conflicts between the Constitution and federal and state laws, as well as presidential orders. That
decision came about in a most surprising way at the turn of the 19th century.
Midnight Appointments
After John Adams, the second president of the United States, lost the election to Thomas Jefferson, he made a number of
so-called midnight appointments to the federal courts. Adams wanted to stack the courts with judges who belonged to his
party, the Federalist Party. Jefferson, a staunch Democratic-Republican determined to block those appointments, ordered
his secretary of state, James Madison, not to give the appointment papers to William Marbury, one of Adams' choices.
That move to stop the court appointment led to the doctrine of judicial review.
Marbury v. Madison
Marbury sued Madison for not giving him the court appointment papers. The case went to the Supreme Court, where
Marbury petitioned the Court to force Madison to give him his appointment papers. The Court, headed by Chief Justice
John Marshall, ruled that it couldn't because the section of the law that gave it the authority to do so was unconstitutional.
A Precedent Is Set
Marbury v. Madison (1803) marked the first time in U.S. history that the Supreme Court ruled an act of Congress, the
Judiciary Act of 1789, unconstitutional. That ruling moved the judicial branch to near equal footing in power with the
legislative and executive branches. From that point on, the judicial branch had new focus and power. It would review acts
of Congress and the president to see if they were constitutional. If they were not constitutional, the courts now had the
authority to declare them null and void.
Court Overrules Itself
Since Marbury took his case to court, the Supreme Court has had the final authority on interpreting cases involving the
meaning of the U.S. Constitution. The Court has ruled on portions of 125 federal laws and over 1,000 state laws that were
unconstitutional. The Court also determines whether its own actions were unconstitutional and has done just that about
200 times.
Checks and Balances
Judicial review was widely accepted in the United States because it was another check on the federal government's
power. Over the years, however, there has been frequent division of opinion among the justices themselves as to how
much authority the Court has in exercising judicial review. Up until the late 1930s, the Court was reticent to allow
Congress to interfere with constitutionally guaranteed property rights. Since then, the Court has focused its attention on
whether the three branches of government have not overstepped the rights of the states.
After World War II, the concept of judicial review spread to countries in Europe and Asia that were drafting new
constitutions. Some historians made the case that concentration of power in the executive branch, unchecked by other
agencies of governments like the courts, contributed to the rise of totalitarian governments in Germany and Japan.