Article 3, Section 1, of the U.S. Constitution says, “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 order and establish.” Section 2 says, “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the laws of the United States, and Treaties made, or which shall be made, under their Authority.”
The judicial power specified in the Constitution is the capacity and authority of the U.S. Supreme Court and lower federal courts to hear and decide cases brought before them on the basis of the supreme law—the Constitution—and federal statutes and treaties that conform to the Constitution. The judicial power of the Supreme Court therefore involves interpretation of the law to make decisions in actual controversies that adversaries bring to the Court. Hypothetical cases are not subjects for Supreme Court decisions.
Article 3, Section 2, of the Constitution says that the judicial power of the federal courts can be exercised in two categories of cases: cases defined by the parties to the controversy and cases defined by their substance. The first category includes legal disputes in which the United States is a party, in which the opposing parties are different states of the federal system, or in which the parties are citizens of different states. The second category includes cases about the meaning or application of provisions of the Constitution, federal statutes, or treaties. It also includes cases pertaining to admiralty and maritime law and to ambassadors and officials from other countries.
Judicial review, although not mentioned in the Constitution, has become an important power of the federal judiciary. Judicial review is the power of a court to declare an act of the federal or state government unconstitutional, or unlawful and void. According to this concept, judges in courts of law appraise acts of the legislative and executive branches of federal and state governments to decide whether they are in conflict with the Constitution. All courts, federal and state, may practice judicial review. The Supreme Court of the United States, however, has final say within the judicial system on whether laws or actions violate or are in accord with the U.S. Constitution.
Judicial review is based on three ideas: that the Constitution is the supreme law, that acts contrary to the Constitution are null and void, and that judges in courts of law are responsible for determining if acts violate or agree with the Constitution.
The judicial power, including the power of judicial review, is one of three coordinate and separate powers of government in the United States: legislative, executive, and judicial. Chief Justice John Marshall, in Osborn v. Bank of the United States (1824), summarized the relationships of the three branches of government: “[T]he legislative, executive, and judicial powers, of every well constructed government, are co-extensive with each other…. The executive department may constitutionally execute every law which the Legislative may constitutionally make, and the judicial department [has]… the power of construing every such law.” As Marshall wrote in Marbury v. Madison (1803), “It is emphatically, the province and duty of the judicial department, to say what the law is.” The federal judicial power, then, has the authority and capacity to interpret the Constitution and laws and treaties made under it; to apply the law to decisions about cases brought before the courts; and to declare laws unconstitutional if they do not conform to the supreme law, the U.S. Constitution.
See also Judicial review; Jurisdiction; Marbury v. Madison; Separation of powers
Sources
- Henry J. Abraham, The Judicial Process (New York: Oxford University Press, 1993)
