Judicial review

Is a distinctive power associated with the Supreme Court that is nowhere specifically mentioned in the Constitution. Chief Justice John Marshall in Marbury v. Madison (1803) asserted the major principle on which it rests by observing: “[i]t is emphatically the province and duty of the judicial department to say what the law is” (p. 177). Through judicial review the Court most dramatically asserts its authority to determine what the Constitution means.

The power of the Court to review the law extends in two directions. The first involves decisions by other branches of the federal government. These cases include actions taken by the executive branch, like the decision by President Richard Nixon to withhold taped records of conversations in the White House, and statutes passed by Congress, such as the Missouri Compromise, which excluded slavery from northern portions of the Louisiana Purchase territory. Judicial review also expresses the authority of the federal courts over state laws and judicial decisions that involve the federal Constitution. Whether involving federal or state matters, the practice of judicial review has been marked by dynamic expansion and persistent controversy. Judicial power has been consolidated both in the superiority of the federal judiciary over the states and of the Supreme Court over the other branches of the federal government. The authority of the federal government that became centralized after the Civil War is one of the pillars of judicial review and vice versa. Justice Thurgood Marshall, in commenting on the constitutional bicentennial celebration of 1987, said that the Constitution did not survive the Civil War, but was remade following that conflict. Since the late nineteenth century, power has come to be increasingly centered in a Supreme Court that would be unrecognizable to the founding generation. Not only do the justices now have a home and no circuit riding responsibilities, but the power to subject the acts of other branches of the federal government and the states to judicial scrutiny is widely accepted. Thus, judicial review is a dynamic institution that expands with the federal authority over the nation.

Origins

Scholars trace the origins of judicial review to Dr. Bonham's Case (1610). Sir Edward Coke, of England's Court of Common Pleas, stated that “when an act of parliament is against common right and reason or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void” (p. 118a). Coke believed that the common lawyer possessed “artificial reason of the law” and that this capacity elevated him to nearly equal footing with king and Parliament. According to Coke, special learning required to interpret the law placed it above politics.

In 1761 the first significant American elaboration of Bonham's Case occurred. James Otis, in the Writs of Assistance Case in Boston, argued that British officers had no power under the law to use search warrants that did not stipulate the object of the search. Otis based his challenge to the underlying act of Parliament on Bonham's Case, the English Constitution, and the principle of “natural equity.” John Adams subsequently adopted this reasoning to defend the rights of Americans by appeal to a law superior to parliamentary enactment. Although colonial courts resisted such radical assertions, these claims nonetheless made the idea of judicial review an important feature of American constitutionalism (see Fundamental Rights).

After the Revolution, the framers of the Constitution debated, and then rejected, an aspect of judicial review, the judicial veto. Although they were concerned about consolidated power in the federal government and the authority of that government over the states, the framers approved the Supremacy Clause of Article VI resolving the latter issue and leaving the former to evolve over the years. They rejected explicit judicial authority over Congress as proposed in the Virginia Plan. James Madison, for example, reiterated the authority of fundamental law, but he refused to acknowledge the authority of the judiciary over the other branches of government. Prominent leaders of the founding generation and future Supreme Court justices James Wilson of Pennsylvania, Oliver Ellsworth of Connecticut, and John Marshall of Virginia argued in their state ratifying conventions that the national government would be limited by the judicial check.

In The Federalist Papers, Alexander Hamilton endorsed the idea of judicial review and provided one of its most compelling ideological foundations. Hamilton wrote that “whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution. … [T]he judiciary … has no influence over either the sword or purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment” (no. 78). Thus, with such reassurances, Hamilton defended the practice of judicial review.

Since the origins of constitutional government in America, judicial review has followed Hamilton's thinking that judges have a special capacity and responsibility to expound the meaning of the Constitution. Attempts by state courts in the 1780s to assert a power over other political institutions either were ignored or brought forth denunciations from the legislature, often with threats to remove the judges. Richard Dobbs Spaight of North Carolina asked “if the judiciary acted as a check on the legislature, then who was to act as a check on the judiciary?” Like the national judiciary, which was also hotly contested in the last years of the eighteenth century, the practice of judicial review was in its formative period.

As a Supreme Court justice, James Iredell, who had been a proponent of judicial review during the Constitutional Convention, developed an institutional foundation for judicial power in his seriatim opinion in Calder v. Bull (1798). He argued against grounding decisions of the Court in the laws of nature. Instead, Iredell proposed that the only basis for invalidating a statute that had been erected by “the legislature of the Union, or the legislature of any member of the Union” was that it violated a provision of the written Constitution in a “clear and urgent case” (p. 399).

The Republican party of Thomas Jefferson challenged Federalist dominance of the judiciary. Jefferson went so far as to predict in a letter to Abigail Adams of 1804 that “The efforts of Federalism to exalt the Judiciary over the Executive and Legislative and to give that favorite department a political character and influence … will probably terminate in the degradation and disgrace of the judiciary.” Jefferson's prognostications proved faulty in several respects.

Early Decisions

“If Congress were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. … They would declare it void,” insisted future chief justice John Marshall at the 1788 Virginia Ratifying Convention. Marshall supplied a practical meaning to these words in the classic case of Marbury v. Madison (1803), in which he securely rooted the modern doctrinal source of judicial review. Marshall himself contributed to the chain of events that culminated in Marbury. Shortly before his appointment to the Court in 1801, Marshall, as secretary of state, failed to deliver a commission as justice of the peace in the District of Columbia to William Marbury, a loyal Federalist. Marbury requested that James Madison, the secretary of state under newly elected president Thomas Jefferson, issue the commission. Madison refused, and Marbury went directly to the Supreme Court. He claimed that under section 13 of the Judiciary Act of 1789 the Court had the original jurisdiction to issue writs of mandamus. Marbury wanted the Federalist‐dominated Supreme Court to order the Jeffersonian Republican‐controlled executive branch to deliver his commission.

Marbury's case threatened to plunge the justices into a political thicket. They readily calculated the furor that a writ of mandamus issued against Jefferson's administration would stir at a time when more radical Republicans were bent on stripping the Court of its power. At best, the president might have simply ordered Madison to disregard the Court; at worst, he might have lent even more of his prestige to efforts already under way by the radical wing of his party in Congress to limit sharply the Court's power.

Marshall appreciated these exigencies. The first part of his opinion sustained Marbury's claim on the basis of the vested‐rights doctrine, an outgrowth of the natural‐rights philosophy of the Revolution that held that certain rights were so fundamental that they were beyond government control. The Court, with its responsibility to preserve fundamental law, was obligated to protect such rights. Distinguishing between political and other rights, Marshall disallowed judicial concern with the former on the grounds that the protection of political rights belonged instead to the popularly accountable political branches. The Court, Marshall said, drew its authority from the well of popular sovereignty, but it could exercise that power only in settling controversies involving fundamental law rather than politics.

What Marshall gave to Marbury in the first half of the opinion he took away in the second. Although a writ of mandamus was in order, the Court could not issue it. The chief justice arrived at this conclusion through a close textual reading of section 13 of the 1789 act and also Article III of the Constitution. Congress might subtract from the Court's original jurisdiction, but Congress could not add to it—as section 13 did—because Article III had already established the Court's jurisdiction fully. With arguments reminiscent of state court implementation of judicial review during the 1780s, Marshall worried that an expansion of the Court's jurisdiction would thrust the justices into political disputes that the political branches themselves could not settle. Such involvement, he concluded, would prevent the Court from acting primarily as the legal institution he believed the departmental theory required.

Because of judicial review the justices would not enforce an unconstitutional act. Through his opinion in Marbury, Marshall simultaneously limited and expanded the Court's power; less power became more. The chief justice accepted the inherent limitation placed on the scope of judicial power, but he boldly asserted that the Court had a responsibility to say what the Constitution meant.

Marbury was a problematic constitutional case in a difficult political setting. Marshall's opinion was defensive; it sought to keep the Court free of political pressures by limiting its role to clearly legal as opposed to political issues. Marshall did not exercise judicial discretion in the modern sense of the word. Interpreting law was not synonymous with making it. Marbury did not receive his commission, but Marshall used the occasion to pronounce the essential elements of judicial review.

Although some nineteenth‐century state court decisions claimed no more for judicial authority than did Marbury, most later instances of judicial review asserted a broader scope of judicial power. Marshall's decisions involving the constitutionality of state legislation proved considerably more controversial in time than Marbury. In a series of major decisions between 1810 and 1824, Marshall resorted to natural law, the Contracts Clause, and the commerce power, among others, to void state statutes, while simultaneously narrowing the reach of the Eleventh Amendment. In Fletcher v. Peck (1810), Marshall relied both on natural‐law formulations drawn from Calder and on the contracts clause of Article I, section 10 of the Constitution to strike down a state statute interfering with title to real property.

But nine years later, in Dartmouth College v. Woodward, Marshall abandoned the natural‐law leg of his Fletcher reasoning and relied on the Contracts Clause alone to thwart a state's attempt to modify the charter of a corporation. The Dartmouth College decision is regarded as an essential step in the emergence of the private, profit‐making corporation as a legal entity in the United States (see Private Corporation Charters).

Marshall limited a state's power to revoke a legislatively granted tax exemption in New Jersey v. Wilson (1812), a particularly controversial holding because it cut so close to sovereign state powers (see State Sovereignty and States' Rights). He extended the reach of judicial power over state taxation in McCulloch v. Maryland (1819), arguably his greatest and most influential opinion, holding that a state could not tax the Bank of the United States or any other instrumentality of the federal government. McCulloch provoked a storm of controversy, most of it emanating from Virginia, but that did not deter Marshall from constricting the Eleventh Amendment in Osborn v. Bank of the United States (1824) to prohibit the state of Ohio from taxing a branch of the Bank in violation of the McCulloch holding.

The decision that most antagonized the Virginians involved an assertion of the Court's authority not over state legislation but over a state supreme court. Martin v. Hunter's Lessee (1816), an opinion written by Justice Joseph Story after Marshall had to excuse himself for personal interest in the subject matter of the litigation, asserted the power of the United States Supreme Court over the politically sensitive subject of state confiscation of Loyalist property during the War for American Independence. Despite the fervid opposition of Chief Judge Spencer Roane of the Virginia Court of Appeals, who denounced Martin as a fatal incursion on state sovereignty, Marshall again reversed a Virginia holding in Cohens v. Virginia (1821) in a ringing vindication of the Supremacy Clause of Article VI.

Gibbons v. Ogden (1824) provided the Court its first opportunity to construe the Commerce Clause of Article I, section 8, which Marshall used to void a state monopoly of river transportation. Although the Contracts Clause remained the Court's most potent weapon of discipline over state legislation throughout the nineteenth century, the Commerce Clause was to emerge in the twentieth as the principal source of federal legislative authority, and Marshall's expansive reading set it off on its career as the basis of vast federal regulatory power over the economy.

President Thomas Jefferson, responding to Marshall's opinion in Marbury, composed “Instructions to a Federal Prosecutory” in 1807, attempting to advance the prosecution of Aaron Burr for treason. Jefferson argued against citing Marbury and proposed “to have [the decision] denied to be law.” He went on to hold “the three great branches of the government should be coordinate, and independent of each other.” Jefferson believed each branch of the government had the right to decide for itself the constitutionality of matters before it and objected to a claim that the Court's judgment was superior to that of the other branches. His efforts on behalf of repeal of the Judiciary Act of 1801 and the first judicial impeachments supported the doctrine of “co‐ordinate construction,” whereby each branch of the federal government interprets the Constitution for itself.

The Pennsylvania case of Eakin v. Raub (1825) provided criticism of Marbury from the state's chief judge, John Gibson. His dissent in that case is viewed as the best exposition of legislative supremacy in early American history. The case dealt with judicial review in Pennsylvania state courts but also addressed questions of federal power raised in Marbury. Gibson argued that “[i]f the judiciary will inquire into anything besides the form of enactment, where shall it stop?” He went on to object, “That the judiciary is of superior rank, has never been pretended, although it has been said to be coordinate” (p. 330). Gibson's reading of the Constitution led him to observe, “[H]ad it been intended to interpose the judiciary as an additional barrier, the matter would surely not have been left in doubt” (p. 331). To Gibson, the written Constitution was accessible to the public and it was the public's ability to hold the legislature accountable to the text that provided the ultimate check on the excesses of government.

The Court's power of review over federal legislation lay dormant for a half century after Marbury, despite the Court's activism with respect to state legislation. Chief Justice Roger B. Taney reassumed the power in Scott v. Sandford (1857) by invalidating the Missouri Compromise of 1820, a federal statute that prohibited the spread of slavery into the Louisiana Purchase territory north of Missouri. Taney's opinion would have been unpopular enough in the North even without the complication of expanded Supreme Court power over politically sensitive issues. Yet the violent northern political reaction to Taney's provocative decision did not produce a sustained assault on the Court as an institution, no matter how fervently northern political leaders assailed Dred Scott and its author. Late in his opinion, Taney also claimed that the slavery restriction violated the Due Process Clause of the Fifth Amendment. But he did not pursue the point there, and Dred Scott was soon overtaken by events, so the potential of the dictum was not realized for over a generation.

President Abraham Lincoln's first inaugural address (1861) indicates the continuing resistance to rule by the judiciary in the middle of the nineteenth century. In this address, Lincoln sought to reassure the southern states that they would continue to be governed by law rather than fiat. His discussion of the law upon assuming the office of the presidency included extended treatment of his role as interpreter. “I take the official oath today, with no mental reservations, and with no purpose to construe the Constitution or laws, by any hypercritical rules.” Grounding his analysis on the concept of the perpetuity of the union, Lincoln engaged in a disquisition on the nature and interpretation of the Constitution. Union came first; the purpose of the Constitution was to form a more perfect one. Lincoln acknowledged that decisions of the Supreme Court were binding on the parties involved and that they were also “entitled to very high respect and consideration, in all parallel cases, by all other departments of the government.” But he also insisted that “if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.” Lincoln's concluding reaffirmation of popular sovereignty continues to influence the meaning of judicial review even today.

Practice Emerges

The Supreme Court of the late nineteenth century realized the full potential of judicial review over both federal and state legislation. Marshall had asserted it, but after 1824 he was reduced to seeing its reach weaken in the face of political assault on its use against state legislation. Taney's respect for state authority avoided that clash, but his resort to the power to overturn federal legislation proved abortive in the Dred Scott case. While the Supreme Court did not write on a clean slate after the Civil War, neither did its innovative decisions expanding judicial review occupy a crowded field of precedent. Thus the Court's creation of the doctrines of substantive due process and freedom of contract were innovations far in advance of anything adopted by the justices in the antebellum era.

A five‐justice majority of the Court relied on traditional notions of police power to uphold state regulatory authority (in this case, the grant of a monopoly over butchering activity in New Orleans) in the Slaughterhouse Cases of 1873. Though the Court strongly reaffirmed the role of the police power just four years afterward in Munn v. Illinois (1877), the dissent of Justices Stephen J. Field and Joseph P. Bradley in Slaughterhouse laid the basis for the sweeping triumph of substantive due process within two decades. Each insisted that any individual had a right to enter into contracts (including employment and business relationships, such as slaughtering), and that this right was protected by the federal Constitution. Field found that right primarily in the Privileges or Immunities Clause of the Fourteenth Amendment, Bradley in the Due Process Clause of that amendment. Bradley's view prevailed in the 1890s, first somewhat obscurely in Chicago, Milwaukee, and St. Paul Railway Co. v. Minnesota (1890) and then triumphantly in Allgeyer v. Louisiana (1897), where the Due Process Clause protected business contracts from legislative regulation.

This trend culminated twice before the New Deal, first in Lochner v. New York (1905), where the Court by a 5‐to‐4 decision invalidated a New York statute prohibiting bakers from working more than sixty hours a week, and then after the war in Adkins v. Children's Hospital (1923), when the Court, again by a 5‐to‐4 margin, struck down a state minimum‐wage law for women. In both of these major decisions, the majority found in the Fourteenth Amendment's Due Process Clause a substantive restraint on state legislative policy making. The Court reached comparable results for federal legislative authority in Adair v. United States (1908), which relied in part on the Fifth Amendment's Due Process Clause. Other decisions that curbed federal power to regulate the economy drew more on arguments based on concepts of federalism than from substantive due process. The principal specimens of these were the two child‐labor decisions: Hammer v. Dagenhart (1918) (the Commerce Clause) and Bailey v. Drexel Furniture (1922) (the Tax Clause).

Yet the Court was not consistent in its substantive due process approach, for it sustained far more legislation, state and federal, than it struck down. Major examples of decisions sustaining economic regulatory legislation included Holden v. Hardy (1898), upholding a Utah maximum‐hours law for men in mining and smelting industries; Muller v. Oregon (1908), upholding maximum‐hours legislation for women; and various decisions sustaining federal authority under the commerce and tax clauses. World War I gave a short‐lived impetus to such results, especially those involving federal power. Thus, by the 1930s the Court had created two inconsistent lines of precedent, the one sustaining, and the other rejecting, the exercise of legislative power at the state and federal levels.

This conflict came to a head in the New Deal. Between 1934 and 1937, the Court first accepted state and federal regulatory efforts to contend with the economic crises of the Depression, in such leading cases as Home Building and Loan Association v. Blaisdell (1934) and Nebbia v. New York (1934) (state authority) and Ashwander v. TVA (1936) (federal). But the mind‐set of substantive due process shortly triumphed, and in a series of decisions that shocked the Roosevelt administration, the Court overturned federal legislative initiatives (e.g., Schechter Poultry v. United States, 1935, involving the National Recovery Act; and United States v. Butler, 1936, involving regulation of agriculture), as well as state legislation: Morehead v. New York ex rel. Tipaldo (1936, involving state minimum‐wage legislation). By 1937, a five‐justice majority of the Court seemed to have embraced the discredited Lochner and Adkins precedents in an effort to frustrate all legislative attempts to cope with the Depression.

President Franklin D. Roosevelt responded with the court‐packing plan, an attempt to enlarge the Supreme Court and lower federal courts with FDR appointees more sympathetic to an activist legislative program. Though he failed in this effort, he won the larger campaign of forcing the Court to reverse substantive economic due process precedents dating back to the Slaughterhouse dissents. The Court was now free to embark on a new period of judicial activism, liberated from the formalist mentality that produced Lochner and its progeny.

Though the Court abandoned substantive due process in questions of economic regulation, the concept itself was not defunct, nor had the Court forsaken activism. Rather, it diverted its concern over legislative power from economic matters to problems of civil liberties and civil rights. Justice Harlan Fiske Stone enunciated this new direction obscurely, in Footnote Four of United States v. Carolene Products Co. (1938) stating that the Court would now scrutinize three categories of issues: “where legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments”; “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation”, and “statutes directed at particular religious … or national … or racial minorities” (p. 153). The Court lost no time in putting that agenda into effect.

The two substantive doctrinal contributions that characterize the growth period for the modern Court are acceptance of economic regulation and the nationalization of civil liberties. Agency cases like those validating the National Labor Relations Board and social welfare decisions upholding Social Security solidified the federal administrative apparatus as the Court turned its attention elsewhere. Civil liberties protection was an extended consequence, a new preoccupation that represented, in the words of legal scholars, an “idea of progress.”

The desegregation decision, Brown v. Board of Education (1954), criminal procedure holdings like Mapp v. Ohio (1961), and the abortion decision in Roe v. Wade (1973) epitomize the most recent period of judicial activism. Brown was a bold restatement of the concept of equality, resulting from America's repudiation of racial discrimination. In Roe, the standard of equality applied to abortion accommodated women's expanded roles in the marketplace. All of these decisions mobilized the institutional authority of the Court and the authority of federal over state law to advance the political idea of equal treatment.

While the court‐packing plan of the New Deal forced a major diversion in the Court's use of judicial review, United States v. Nixon (1974) affirmed the Supreme Court's power to stand against the other branches of the government. This decision, in which the Court ordered the president to turn over politically damaging materials, came at the height of a dramatic confrontation between Congress and the presidency. The political context in which the decision was reached boosted the authority of the Court in American political culture, because the justices ordered the president to act against his own interests. The president obeyed. This decision was widely heralded as saving the country from executive tyranny and was accepted as an assertion of the authority of the Supreme Court as the “final arbiter” in constitutional matters.

Modern Practice

Mid‐twentieth‐century judicial review emphasizes the Supreme Court's predominance over the executive and the legislative branches of the federal government and the states in matters of constitutional interpretation. The power derives from the justices' expertise in interpreting the Constitution and its supremacy as law. The language of law is constitutive because the various communities that compose the American nation accept its conventions. In constitutional law, judicial review is a function of professional and seemingly apolitical practices dating to John Marshall's opinions. The lawyers who speak to the courts today and the lawyers who sit on the bench have developed a special way of speaking about the power of judges, so much so that some observers have concluded that the Constitution is “what the justices say it is.”

On the occasion of the two‐hundredth anniversary of the Constitution, Americans had come to accept judicial review at the same time that the controversy over its origins persisted. Solicitor General Kenneth W. Starr observed that “by virtue of the status of the Constitution as supreme law” the American system would “include the power of judicial review.” At the same time, the justices needed a power that brought them status in the present day far beyond what they ever had before. Chief Justice William H. Rehnquist has noted that “We … must realize that our work has no more claim to infallibility than that of our predecessors.” He pointed out that the statement “on the front of this building—Equal Justice Under Law—describes a quest, not an institution.”

Recently the Court has shifted its attention away from civil liberties to separation of powers, an area in which the authority of judges is grounded in the expectations of the founders and the canons of constitutional philosophy. The erosion of the political question doctrine and the political content of some recent decisions coexist with continued assertions that judges are not simply politicians behind, the bench. Even as the Court attempts to establish the boundary of its legal authority, the justices continue to expand the bases of judicial review.

With regard to political questions, the evolution of the modern Supreme Court has been away from traditional legal forms associated with the judiciary in favor of informality and bureaucracy. National authority over the Constitution is based more on the Supreme Court's position at the helm of the national judiciary than any uniquely legal qualities. The political question doctrine is a device for transferring the responsibility for a question or decision to another branch of government, usually Congress. In the 1960s, the justices entered one of the last remaining spheres that had been closed off by the political question doctrine in the reapportionment decision Baker v. Carr (1962). According to some scholars, questions became political simply because judges refused to decide them (see Reapportionment Cases).

The Court continues to move in that direction, as indicated by Davis v. Bandemer (1986), the political gerrymandering case. Although the Court did not find political gerrymandering to be discriminatory, the clear implication was that the justices might soon make such a finding. Thus there is little in the way of substantive questions that separates judges from other actors in the political process.

Yet other cases, such as Webster v. Reproductive Health Services (1989), provide evidence of the new limits of judicial review. In the matter of judicial authority, the dissenting opinion by Justice Antonin Scalia portrayed vividly the need for the Court to protect itself from immersion in the political arena. “The outcome of today's case will doubtless be heralded as a triumph of judicial statesmanship. It is not that, unless it is states‐manlike needlessly to prolong this Court's self‐awarded sovereignty over a field where it has little proper business since the answers to most of the cruel questions posed are political and not judicial” (p. 532).

Nomination hearings for appointment to the Supreme Court have highlighted the inevitable tension in judicial review between law and politics. Hearings on Sandra Day O'Connor's nomination in 1981 attempted to draw out the nominee on the issue of abortion. She stated that it was facts, law, and constitutional principles that would guide her decisions, not her personal views. Extensive questioning of nominee Robert Bork demonstrated that politics resides in the exercise of judicial power. In response to questions about his agenda, which often revolved around judicial review, Bork proposed a jurisprudence of “original intent” that would affirm the importance of the constitutional text in guiding a justice. His failure to be confirmed was, in part, a failure to convince the Senate on this issue.

The current debate over the legitimacy of the Supreme Court's use of judicial review is only the most recent phase of a historical dialogue essential to the maintenance of the Constitution. The Court will continue to exercise judicial review; the constitutional order demands as much. In this sense, the lessons taught by the history of the Supreme Court and judicial review have nothing to do with the framers' intentions, either of implementation or scope. Rather, the past speaks to the present in another way. Americans can—and will—debate the legitimacy of judicial review, but they should know that dialogue nourishes their distinctive experiment in constitutionalism. Americans have never taken judicial review for granted, and they never can.

See also Impact of Court Decisions; Implied Powers; Judicial Power and Jurisdiction; Judicial Self‐Restraint.

Bibliography

• Alexander Bickel, The Supreme Court and the Idea of Progress (1970).
• John Brigham, The Cult of the Court (1987).
• Edward S. Corwin, The Higher Law Backgrounds of American Constitutional Law (1928).
• Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic (1971).
• Louis Fisher, Constitutional Structures (1990).
• Kermit L. Hall, The Supreme Court and Judicial Review in American History (1985).
• Catharine MacKinnon, Toward a Feminist Theory of the State (1989).
• Walter Murphy, William Harris, and James Fleming, American Constitutional Interpretation (1986).
• Elliot E. Slotnick, The Place of Judicial Review in the American Tradition, Judicature (1987): 68–79

— John Brigham

The power to review legislative and executive acts and to nullify those that are believed to contravene a constitution. Used in a number of countries including Australia, Pakistan, Japan, India, Germany, Italy, and the United States.

Judicial review is not in fact mentioned in the US Constitution, nor was it discussed at the Constitutional Convention in 1787. It has, however, been suggested that the practice can be traced back to the colonial period when the Privy Council in London acted as a final court of appeal and assumed the right to strike down colonial legislation that did not conform to the English Constitution. The federal judiciary's right to exercise judicial review was boldly asserted by Alexander Hamilton in Federalist Paper no. 78 when he said ‘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.’

The principle of judicial review was further elaborated and justified in one of the most famous Supreme Court decisions, Marbury v. Madison (1803) when part of the Federal Judiciary Act of 1789 was declared unconstitutional. Chief Justice John Marshall, on behalf of the Court, noted that: ‘the Constitution organizes the government, and assigns to different departments their respective powers . . . The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? . . . It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; … It is emphatically the province and duty of the judicial department to say what the law is.’

Theoretically, this makes a lot of sense. Those who set up the American political system were trying to construct a government of divided, limited powers and the whole purpose of having a written constitution was to ensure that those divisions and limitations were properly respected. The supremacy of the Constitution over legislative acts in such a system cannot be denied and there is plausibility to the argument that the federal courts must adjudicate when disputes arise as to the constitutionality of legislation. In practice, however, such arrangements pose important problems. Those appointed to the courts are often selected for political reasons, and many have not been slow to import their personal, political preferences into their judicial decision-making. This would matter less if the Constitution was not such a brief, ambiguous document subject to many interpretations and profound disagreement.

It is also a cause for concern among some observers that judicial review allows unelected judges, appointed for life, to become the ultimate arbiters of public policy-making, able to defy even the wishes of the majority, and thereby violating basic principles of liberal democracy. In response to such complaints it can be argued that the federal courts are not immune to the will of the people. The appointment process, for instance, allows elected officials to exercise influence on the judiciary—the President appoints federal judges subject to the advice and consent of the Senate.

Furthermore, as Hamilton observed in Federalist Paper no. 78, checks and balances incorporated in the Constitution ensure that the courts constitute the ‘least dangerous’ branch of the government. Thus the scope of the appellate jurisdiction of the Supreme Court is subject to the will of Congress and, while the latter possesses the power of the purse and the executive the power of the sword, the Court has no means of enforcing its decisions. It is also the case that the Supreme Court has shown itself capable of reversing earlier decisions that no longer meet with popular support. It is also possible to impeach judges, or to overturn their decisions by the process of constitutional amendment.

— David Mervin

For more information on judicial review, visit Britannica.com.

The system, especially entrenched in the United States, whereby a supreme court or other legal body is empowered to review and possibly to strike down legislation enacted by a democratically elected body, on the grounds that it transgresses against fundamental principles enshrined in a constitution. It is seen by many, especially lawyers, as a bulwark against majority tyranny, and by politicians who cannot find a way to co-opt it as a legalistic obstacle to democratic process.

Judicial review is the power of the judiciary, or the courts, to determine whether the acts of other branches of government are in accordance with the Constitution. All courts, federal and state, may exercise the power of judicial review, but the Supreme Court of the United States has the final judicial decision on whether laws or actions of local, state, or federal governments violate or conform to the U.S. Constitution, the highest law of the land.

Judges use their power of judicial review only in cases brought before the courts. They consider only actual controversies, not hypothetical questions about the Constitution. Congress cannot, for example, ask the Supreme Court for its advice about whether a bill is constitutional. The Court would make this kind of decision only if the bill became a law and someone challenged it.

Judicial review is not mentioned in the Constitution. However, before 1787 this power was used by courts in several of the American states to overturn laws that conflicted with the state constitution.

Judicial review of state laws

The federal judiciary's power to review state laws is implied in Articles 3 and 6 of the U.S. Constitution. Article 3 says that the federal courts have power to make judgments in all cases pertaining to the Constitution, statutes, and treaties of the United States.

Article 6 implies that the judicial power must be used to protect and defend the authority of the U.S. Constitution with respect to the laws and constitutions of the states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made under the authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Furthermore, Article 6 declares that all officials of the federal and state governments, including all “judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.”

To establish a judicial system for the United States, Congress enacted the Judiciary Act of 1789. Section 25 of this statute provided for review by the U.S. Supreme Court of decisions by state courts that involved issues of federal law.

On the basis of Articles 3 and 6 of the U.S. Constitution and Section 25 of the Judiciary Act of 1789, the Supreme Court in 1796 (Ware v. Hylton) exercised the power of judicial review to strike down a law of the state government of Virginia. According to the Supreme Court, the Virginia law, which protected Virginia citizens with debts to British creditors from having to pay, was unconstitutional because it violated the 1783 Treaty of Paris, which guaranteed that prewar debts owed to the British would be paid. This judicial decision was generally viewed as consistent with the words of the U.S. Constitution and the intentions of its framers.

Judicial review of federal laws and actions

An open-ended and troublesome question of the founding period was whether the power of judicial review could be used to nullify acts of the legislative or executive branches of the federal government.

In 1788 Alexander Hamilton argued in The Federalist No. 78 for judicial review as a means to void all governmental actions contrary to the Constitution. He maintained that limitations on the power of the federal legislative and executive branches in order to protect the rights of individuals “can be preserved in practice no other way than through… courts of justice, whose duty it must be to declare all acts contrary to… the Constitution void. Without this [power of judicial review], all the reservations of particular rights or privileges would amount to nothing.”

Hamilton concluded, “No legislative act, therefore, contrary to the Constitution, can be valid…. [T]he interpretation of the laws is the proper and peculiar province of the courts. A constitution is… a fundamental law. It therefore belongs to [judges] to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body.”

Marbury v. Madison

The ideas on judicial review in The Federalist No. 78 were applied by John Marshall, chief justice of the United States, in Marbury v. Madison (1803). The specific issue and decision in this case are of little interest or consequence today. However, Chief Justice Marshall's argument for judicial review, which firmly established this power in the federal government's system of checks and balances, has become a strong instrument of the federal courts in securing the constitutional rights of individuals.

In Marbury v. Madison, the Supreme Court was confronted with an act of Congress that conflicted with a provision of the United States Constitution. The question, in Marshall's words, was “whether an act, repugnant to the constitution, can become the law of the land.” He answered that the Constitution is “the fundamental and paramount law of the nation, and consequently, … an act of the legislature repugnant to the constitution is void.” Marshall argued, from the supremacy clause of Article 6, that no act of Congress that violates any part of the Constitution can be valid. Rather, he wrote, it must be declared unconstitutional and repealed.

Marshall concluded with his justification for the Supreme Court's power of judicial review:

It is, emphatically, the province and duty of the judicial department, to say what the law is…. So, if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case, conformable to the law, disregarding the constitution; or conformable to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case; this is of the very essence of judicial duty. If then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which both apply.

Marshall used three provisions of the Constitution to justify his arguments for judicial review. The first was Article 3, Section 2, which extends the judicial power to “all Cases, in Law and Equity, arising under this Constitution.” Marshall argued, “Could it be the intention of those who gave this power, to say, that in using it, the constitution should not be looked into? That a case arising under the constitution should be decided, without examining the instrument under which it arises? This is too extravagant to be maintained.”

Second, Article 6 requires judges to pledge “to support this Constitution.” Marshall wrote, “How immoral to impose [this oath] on them, if they were to be used as the instruments… for violating what they swear to support!”

Third, Marshall pointed out “that in declaring what shall be the supreme law of the land [Article 6], the constitution itself is first mentioned; and not the laws of the United States, generally, but those only which shall be made in pursuance of the constitution, have that rank.”

Finally, Chief Justice Marshall stated “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 [of the government], are bound by that instrument.”

Checking and balancing

At times, the Supreme Court's use of judicial review has frustrated and angered both Presidents and Congress. Sometimes the federal judiciary lags behind public opinion—for instance, when conservative Supreme Court justices declared popular New Deal programs unconstitutional during the 1930s. Yet in 1937, when President Franklin D. Roosevelt proposed to “pack” the Court with extra justices to protect New Deal programs, Congress blocked the plan and defended the independence of the judiciary.

Sometimes the judiciary takes the lead in promoting new policies before the public—or their elected representatives in Congress—have accepted them. Many members of Congress were outraged over such decisions as Brown v. Board of Education (1954), which ended racially segregated schools, Engel v. Vitale (1962), which prohibited prayer in public schools, and Roe v. Wade (1971), which permitted abortion.

Congress can pass legislation to try to meet the Court's objections to a law it has overturned. Or two-thirds of Congress can propose a new amendment to the Constitution to overturn the Court's ruling. For instance, when the Supreme Court ruled a federal income tax unconstitutional, Congress responded with the 16th Amendment (ratified in 1913) to permit such a tax.

At other times, the Court makes changes by itself. Some have said that the Supreme Court “follows the election returns.” This means that the Court has reversed some of its opinions because of shifts in national politics and public attitudes. For instance, even though Franklin Roosevelt failed to “pack” the Court, some of the conservative justices began to shift their votes in favor of the New Deal's liberal programs, which the public had endorsed by overwhelmingly reelecting Roosevelt and his supporters in Congress. New Presidents appoint new judges who often think differently about legal issues than the previous majority on the Court. Congress has the power to impeach federal judges, but it can do so only in cases of criminal misbehavior, rather than because of the way a judge thinks and votes. Instead, the Senate scrutinizes federal judges before they go on the bench and does not hesitate to reject a judge it considers too extreme or out of step with public opinion.

Significance of judicial review

James Madison spoke with foresight during the first federal Congress when, on June 8, 1789, he predicted that the “independent tribunals of justice [federal courts] will consider themselves in a peculiar manner the guardians of those [constitutional] rights… [and] resist every encroachment upon rights expressly stipulated … by the declaration [bill] of rights.”

During the more than 200 years of its existence, the Supreme Court has used its power of judicial review to overturn more than 150 acts of Congress and more than 1,000 state laws. The great majority of these invalidations of federal and state acts have occurred during the 20th century. The Supreme Court declared only 3 federal acts and 53 state laws unconstitutional from 1789 until 1868. Most of the laws declared unconstitutional since 1925 have involved civil liberties guaranteed by the Bill of Rights and subsequent amendments concerned with the rights of individuals. Thus, the Supreme Court has become the guardian of the people's liberties that James Madison said it would be at the inception of the republic.

See also Constitutional democracy; Constitutionalism; Court-Packing Plan (1937); Judicial power; Marbury v. Madison; Nominations, confirmation of; Separation of powers; Ware v. Hylton

Sources

• Robert Lowry Clinton, Marbury v. Madison and Judicial Review (Lawrence: University Press of Kansas, 1989).
• John H. Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge: Harvard University Press, 1980).
• Leon Friedman, The Supreme Court (New York: Chelsea House, 1987).
• Kermit L. Hall, The Supreme Court and Judicial Review in American History (Washington, D.C.: American Historical Association, 1985).
• Edward Keynes with Randall K. Miller, The Court vs. Congress: Prayer, Busing, and Abortion (Durham, N.C.: Duke University Press, 1989).
• Christopher Wolfe, The Rise of Modern Judicial Review (New York: Basic Books, 1986)

When a court measures a statute or an executive action against a constitution, treaty, or other fundamental law, judicial review has occurred. The antecedents of modern judicial review were three: first, Edward Coke's opinion in Bonham's Case (1610), in which he declared an act of Parliament to be against "common right and reason" and therefore void; second, the opinions of the British Privy Council finding certain measures of colonial legislatures to have exceeded authorization under their royal charters; and third, early U.S. state government decisions that state statutes exceeded the permissible bounds set forth in the state constitutions. There were also some early state and federal decisions suggesting that even where the state or federal constitutions were silent, certain basic principles of "republican governments" could not be disregarded by legislators, principles that would be grounds for striking down statutes. In Calder v. Bull (1798), Supreme Court Justice Samuel Chase gave examples of the violation of these principles, such as taking one person's property to give to another, deeming an action criminal that was not illegal when committed, and making persons judge and party in their own cases.

Judicial review in America is often dated from John Marshall's opinion in Marbury v. Madison (1803). According to Marshall, a provision of the Judiciary Act of 1789 improperly extended the jurisdiction of the U.S. Supreme Court, and was therefore unconstitutional. This was the first opinion in which the Court exercised judicial review en banc (with full judicial authority). The idea of judicial review had been employed previously by several of the justices, riding circuit, to question both federal and state legislation. In Federalist No. 78, published at the time of the ratification of the U.S. Constitution, Alexander Hamilton asserted the power of judicial review in terms almost identical to those employed by Marshall in Marbury. Opponents of the Constitution believed judicial review gave the justices too much discretion, but Hamilton defended the doctrine by arguing that when the judges struck down a statute on the grounds that it was barred by the Constitution, they were merely fulfilling their task as agents of the American people—the sovereign that dictated the Constitution.

Dred Scott Case and the Fourteenth Amendment

Judicial review was infrequent during the Republic's early years, although in several notable cases, including Fletcher v. Peck (1810), Dartmouth College v. Woodward (1819), and Gibbons v. Ogden (1824), the Marshall Court ruled that state legislatures had exceeded the bounds permitted them under the federal Constitution. Not until the Taney Court decided the Dred Scott Case (1857), however, was a second federal statute ruled unconstitutional. In a 7 to 2 decision, Chief Justice Taney ruled that Congress had no power to forbid slavery in the territories, because the Fifth Amendment to the Constitution barred Congress from taking property without "due process." According to Taney, forbidding slavery amounted to the obliteration of a property interest that could not be "dignified with the name of due process."

At the beginning of the twenty-first century the Dred Scott case is regarded with universal disapprobation. Still, Taney's statement of the proper philosophy of judicial review—that the Court should interpret the Constitution's provisions as they were understood at the time of the Constitution's ratification—has merit and is itself in accordance with the understanding of the framers. Taney's elevation of property rights to the central constitutional concern is also in keeping with the framers' views.

Nevertheless, in Dred Scott, Taney belied his own judicial philosophy when he failed to recognize that at the time of the framing of the Constitution there was a presumption in favor of human freedom and a widespread belief that slavery was contrary to natural law. As such, there was less protection for slavery than for other forms of property, and congressional prohibition of slavery where it had not been established by positive law should have been permissible. Another principal holding of Dred Scott—that even free blacks were not regarded as "citizens" at the time of the ratification of the Constitution—is similarly debatable. Through 2002, Dred Scott continued to be invoked as a symbol of judicial review's excesses.

After the Civil War a series of constitutional amendments were passed, some provisions of which reversed Dred Scott. The Thirteenth Amendment forbade slavery and the Fourteenth Amendment made clear that citizen-ship could not be denied because of race. The Fourteenth Amendment also further circumscribed the powers of state governments by providing that no state could deprive any person of the "equal protection of the laws," take a person's "life, liberty or property without due process of law," or "abridge the privileges and immunities of citizens of the United States." The meaning of these provisions is obscure, but thereafter the Fourteenth Amendment was invoked in the most dramatic instances of judicial review.

The Fourteenth Amendment was intended to improve the lot of the newly freed slaves, but it soon came to be employed in a different context. As states began to impose new forms of economic regulation, many businesses and corporations argued that they possessed Fourteenth Amendment rights that had been infringed. They asserted a "right to contract" that they claimed inhered in the due process provision of the Fourteenth Amendment. Just as Taney believed that a congressional statute that took away a right to property in slaves could not be regarded as due process, so some began to argue that to infringe on the right to contract with one's employees did not meet the requirements of due process. Because this argument did not deal with "process" in its usual sense, it came to be known as substantive due process. This doctrine assumes that there are some subjects on which legislation simply should not be permitted.

A number of Supreme Court decisions found state regulatory legislation unconstitutional. The most famous was Lochner v. New York (1905), in which the Court invalidated, on substantive due process grounds, New York legislation that set maximum hours for bakers. Lochner's majority was chastised by Oliver Wendell Holmes Jr. in a fiery dissent. He claimed that the majority was imposing its own policy preferences on New York, and was reading into the Constitution a particular economic theory which the framers had not intended.

The New Deal

Until 1937 the U.S. Supreme Court continued to employ judicial review in service of a conservative, business-oriented view of the Constitution. When the Great Depression led to federal regulatory efforts of an unprecedented scope, it was inevitable that the Court would be asked to review the constitutionality of these measures. There were a number of decisions, some upholding New Deal legislation. But in the most notable cases, the Court held that Congress's power to regulate interstate commerce was limited and could not be stretched to include manufacturing or processing which took place within a single state. Schechter Poultry Corporation v. United States (1935), for example, invalidated the National Industrial Recovery Act (1933).

Schechter Poultry infuriated President Franklin Roosevelt, who bemoaned the Court's use of a "horse-and-buggy" definition of interstate commerce. Roosevelt challenged the Court's interpretive strategy of defining terms the way they had been understood by the framers, and argued for a dynamic interpretation to fit the Constitution to the needs of the times. Roosevelt, in his fulmination, threatened to pack the court by appointing additional justices sympathetic to his views. But before he could, the Court dramatically changed interpretive course.

The case that demonstrated the Court's interpretive shift most clearly was National Labor Relations Board v. Jones and Laughlin Steel Corporation (1937), in which the Court allowed Congress to use its powers to regulate interstate commerce to create the National Labor Relations Board, with jurisdiction to mandate collective bargaining and union organizing within manufacturing plants. The Court's logic was that a strike at the Pennsylvania steel plant in question might have consequences for interstate commerce and that this possibility permitted federal regulation. This logic could support federal regulation of nearly anything, and was employed until late in the twentieth century. Jones and a number of other cases also rejected the predominance earlier given to freedom of contract, and substantive economic due process died.

The Warren Court

Several striking instances of modern judicial review occurred during the chief justiceship of Earl Warren, who adopted the notion advanced by Franklin Roosevelt that the Constitution ought to be perceived as a "living document." In the landmark case of Brown v. Board of Education of Topeka (1954), the Warren Court announced that constitutional jurisprudence could not "turn back the clock." Warren, writing for a unanimous Court, held that racially segregated schools violated the Fourteenth Amendment's guarantee of equal protection of the laws, and that the practice had to end. There was strong evidence that this had not been the intention of the amendment, but the Court brushed this objection aside. The events Brown set in motion altered racial relations in America forever, and initiated a pattern of judicial activism unlike any other.

The Warren Court embraced earlier decisions which had held, in spite of a paucity of evidence, that the Fourteenth Amendment was intended to extend the Bill of Rights' prohibitions against the federal government to forbid actions by the states. The Court proceeded, wholesale, to refashion state and local government and law enforcement. The Court ruled that state laws requiring compulsory Bible reading or school prayer violated the First Amendment. It decided that the Fourth Amendment's prohibition on unreasonable searches and seizures meant that local law enforcement officials had to follow particular procedures dictated by the federal courts or have the evidence they obtained thrown out of court. The Court read the Fourteenth Amendment's equal protection language to mean that both houses of the state legislatures had to be apportioned on the basis of population, refusing to allow the states to emulate the federal Constitution's model of one chamber determined by population, and another by political subdivision.

Roe v. Wade

For most of the period of the Burger and Rehnquist Courts, much of the reformist zeal of the Warren Court prevailed. In an exercise of constitutional interpretation second in boldness only to Brown, the Court in Roe v. Wade (1973) ruled 7 to 2 that state prohibitions on abortion during the first trimester of pregnancy violated the Fourteenth Amendment's requirement of due process. Thus did substantive due process return, though in neither the property rights guise of Dred Scott or the economic aspect of Lochner.

The audacity of Roe led to an unsuccessful struggle in the legal academy to articulate a theory of judicial review that might reconcile the Court's conduct with Hamilton's idea that judicial review merely carried out the will of the people. Although the Court had been unwilling to overturn Roe, by 2002 it survived by the slimmest of margins. The Warren Court's decisions regarding state-sponsored prayer were generally upheld as late as 2002, with the Rehnquist Court barring officially selected prayers at school graduations and even at football games. Lower federal courts nibbled away at the school prayer decisions at the beginning of the twenty-first century, however, by permitting schools to impose "moments of silence" with prayer among the permitted meditative activities.

The Rehnquist Court

With the landmark case of United States v. Lopez (1995), the Supreme Court, under Chief Justice William Rehnquist, announced for the first time since the New Deal that a federal regulatory measure was not permitted under the commerce clause. Congress had sought to impose federal criminal penalties on those who carried unauthorized firearms in or near any school in the nation. Proponents of the act argued that firearms disrupted education and that the disruption of education would eventually have an adverse affect on interstate commerce. This rationale was no more strained that that which had permitted the Court to allow many New Deal measures, but in a 5 to 4 ruling, the Court decided that to permit this commerce clause argument to prevail in Lopez would be to allow unlimited federal regulation.

A later Rehnquist Court case, United States v. Morrison (2000), applied similar logic to reject some provisions of the federal Violence Against Women Act, holding that basic criminal law enforcement was a matter for the state and local governments rather than the federal government. Lopez and Morrison, and a variety of other cases concerned with the assertion of state sovereign immunity and the prohibition on conscripting state and local officials into federal law enforcement, were perceived in the 1990s as the Rehnquist Court's assertion of a "new federalism." Critics charged that the Court's newly activist conservative majority was bent on construing the Constitution in a manner that sharply restricted what the federal government could do, and threatened its role as the protector of civil rights. The Rehnquist Court's defenders argued that it was returning to a jurisprudence of original understanding, and receding from the wanton readings of the Constitution during the Warren Court years.

But if the Rehnquist Court's new federalism decisions could be defended as an exercise in returning the Constitution to its original scheme, it was difficult to make that argument in support of the Rehnquist Court's most ambitious act of judicial review, in Bush v. Gore (2000). For the first time, the Supreme Court, at the instance of a presidential candidate, held that a state court's interpretation of state election law violated the equal protection clause of the Fourteenth Amendment. Seven justices agreed there was an equal protection violation, but only five concurred in the Court's remedy of barring further ballot recounts in Florida, in effect awarding the presidency to George W. Bush.

In 2001 and 2002, justifications were advanced for what the Court did (most centering around the country's need to put an end to election proceedings that threatened to drag out for months or years). But the Court's equal protection reasoning was dubious and the Court itself took pains to limit its holding to the case at hand. Many sympathetic to the Gore candidacy believed that the Court stole the election for Bush. Not surprisingly, no sooner did the Democrats take control of the Senate in early 2001 than a series of hearings was scheduled on "judicial ideology." Democratic senators were concerned about preserving the legacy of the Warren Court, and worried that the Rehnquist Court was embarked upon "judicial activism." During the first months of 2001, no Bush nominees were confirmed to the federal courts and Democrats asserted that there was a need for a balance of interpretive approaches on the bench. Republicans countered this argument by asserting that ideology had no place in judging, which, they claimed, ought to be conceived of as an objective search for the original under-standing of the legislature or the sovereign people. The nature of judicial review had once again become one of the most important issues in national politics.

Bibliography

Dionne, E. J., Jr., and William Kristol, eds. Bush v. Gore: The Court Cases and the Commentary. Washington, D.C.: Brookings Institution, 2001.

Ely, John Hart. Democracy and Distrust: A Theory of Judicial Review. Cambridge, Mass.: Harvard University Press, 1980.

Perry, Michael J. The Constitution, the Courts, and Human Rights: An Inquiry into the Legitimacy of Constitutional Policymaking by the Judiciary. New Haven, Conn.: Yale University Press, 1982.

Presser, Stephen B. Recapturing the Constitution: Race, Religion, and Abortion Reconsidered. Lanham, Md.: National Book Network, 1994.

Wolfe, Christopher. The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law. New York: Basic Books, 1986.

Wood, Gordon S. The Creation of the American Republic, 1776–1787. Chapel Hill: University of North Carolina Press, 1969.

This entry contains information applicable to United States law only.

A court's authority to examine an executive or legislative act and to invalidate that act if it is contrary to constitutional principles.

The power of courts of law to review the actions of the executive and legislative branches is called judicial review. Though judicial review is usually associated with the U.S. Supreme Court, it is a power possessed by most courts of law in the United States. State courts exercise this power in ruling on the validity of state executive acts or state statutes, in terms of their interpretation of the state constitution. They base such rulings on the principle that a state law that violates the state constitution is invalid. Normally the U.S. Supreme Court cannot review such decisions unless the case clearly involves a federal constitutional issue.

Judicial review is an invention of U.S. law, based on the existence of a written constitution that can be changed only by constitutional amendment. Though legislation is accorded a general presumption of validity, a court has the power to strike down a law if it violates constitutional or statutory principles.

Though a few state courts exercised judicial review prior to the adoption of the U.S. Constitution, the Framers did not resolve the question of whether the newly created federal courts should have this power. Article III, which established the judicial branch, is silent on the subject. During the early years of the Republic, the Supreme Court upheld congressional acts, which implied the power of judicial review. But the key question was whether the Court had the power to strike down an act of Congress.

The issue was settled by the Supreme Court in 1803, in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60, which ruled an act of Congress unconstitutional. In Marbury Chief Justice John Marshall reasoned that since it is the duty of a court in a lawsuit to declare the law, and since the Constitution is the supreme law of the land, where a rule of statutory law conflicts with a rule of the Constitution, then the law of the Constitution must prevail. Marshall asserted that it is "emphatically the province and duty of the judicial department, to say what the law is."

Having established the power of judicial review, the Supreme Court applied it only once prior to the Civil War, in 1857, ruling the Missouri Compromise of 1820 unconstitutional in Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L. Ed. 691. In the same period, the Court invalidated several state laws that came in conflict with the Constitution. In M'Culloch v. Maryland, 17 U.S. 316, 4 L. Ed. 579 (1819), the Court invalidated a state's attempt to tax a branch of the Bank of the United States. In Gibbons v. Ogden, 22 U.S. 1, 6 L. Ed. 23 (1824), the Court struck down a New York law granting a monopoly to a steamboat company, saying that the state law conflicted with a federal law granting a license to another company.

In addition to asserting the power to invalidate state laws, the Marshall Court established the authority to overrule decisions of the highest state appellate courts on questions of federal constitutional and statutory law. Article VI of the U.S. Constitution provides that the Constitution, laws, and treaties of the United States "shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." The Supreme Court affirmed its power to review state court decisions in Martin v. Hunter's Lessee, 14 U.S. 304, 4 L. Ed. 97 (1816).

Following the Civil War, the Supreme Court began to invalidate acts of Congress, yet avoided the great issues of public debate and thus avoided conflict like that which engulfed it following its Dred Scott decision. Beginning in 1890, however, the Court again became the source of political controversy when it exercised its power of judicial review to limit government regulation of business. In Chicago, Milwaukee, & St. Paul Railroad Co. v. Minnesota, 134 U.S. 418, 10 S. Ct. 462, 33 L. Ed. 970 (1890), the Court struck down a state law establishing a commission to set railroad rates. This case was the first of many where the Court applied the doctrine of "substantive due process" to invalidate state and federal legislation that regulated business. Substantive due process was a vague concept that required legislation to be fair, reasonable, and just in its content.

Through the early 1900s, the Court came under attack from Populists and Progressives for its desire to insulate capitalism from government intervention. Unmoved by its critics, the Court proceeded to invalidate a federal income tax (Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 15 S. Ct. 673, 39 L. Ed. 759 [1895]), limit the scope of the Sherman Anti-Trust Act (United States v. E. C. Knight Co., 156 U.S. 1, 15 S. Ct. 249, 39 L. Ed. 325 [1895]), and forbid states to regulate working hours (Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 [1905]).

The Supreme Court's use of substantive due process brought charges of "judicial activism," which asserted that in determining whether laws would meet constitutional muster, the Court was acting more as a legislative body than as a judicial body. Justice Oliver Wendell Holmes, Jr., in his famous dissenting opinion in Lochner, argued for "judicial restraint," cautioning the Court that it was usurping the function of the legislature.

Despite Holmes's warning the Court continued to strike down laws dealing with economic regulation into the 1930s. In 1932 the United States, in the midst of the Great Depression, elected Franklin D. Roosevelt president. Roosevelt immediately began to implement his New Deal program, which was based on the federal government's aggressive regulation of the national economy. The Supreme Court used its power of judicial review to invalidate eight major pieces of New Deal legislation.

Roosevelt, angry at the conservative justices for blocking his reforms, proposed legislation that would add new appointees to the Court, so as to create a liberal majority. This "court- packing" plan aroused bipartisan opposition and ultimately failed. But the Court may have gotten Roosevelt's message, for in 1937 it made an abrupt turnabout: a majority of the Court abandoned the substantive due process doctrine and voted to uphold the Wagner Act, which guaranteed to industrial workers the right to unionize and bargain collectively (National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893 [1937]).

With this decision the Court ceased to interpret the Constitution as a barrier to social and economic legislation. The Court subsequently upheld congressional legislation that affected labor relations, agricultural production, and social welfare. It also exercised judicial restraint with respect to state laws regulating economic activity.

Beginning in the 1950s, the Supreme Court exercised its judicial review power in cases involving civil rights and civil liberties. During the tenure of Chief Justice Earl Warren, from 1953 to 1969, the Court declared federal statutes unconstitutional in whole or in part in twenty-five cases, most of the decisions involving civil liberties. The Warren Court's decision in Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), however, invalidated state laws that mandated racially segregated public schools.

The Supreme Court became increasingly conservative in the 1970s. Yet, in 1973, under Chief Justice Warren E. Burger, it invalidated state laws prohibiting abortion in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147. Since the elevation of William H. Rehnquist to chief justice in 1986, the Court has continued its movement to the right, although it has not retreated from most of the protections it recognized under Warren in the realm of civil rights and civil liberties.

The exercise of judicial review is subject to important rules of judicial self-restraint, which restrict the Supreme Court, and state courts as well, from extending its power. The Supreme Court will hear only cases or controversies, actual live disputes between adversary parties who are asserting valuable legal rights. This means the Court cannot issue advisory opinions on legislation. In addition, a party bringing suit must have standing (a direct stake in the outcome) in order to challenge a statute.

The most important rule of judicial restraint is that statutes are presumptively valid, which means that judges assume legislators did not intend to violate the Constitution. It follows that the burden of proof is on the party that raises the issue of unconstitutionality. In addition, if a court can construe a disputed statute in a manner that allows it to remain intact without tampering with the meaning of the words or if a court can decide a case on nonconstitutional grounds, these courses are to be preferred. Finally, a court will not sit in judgment of the motives or wisdom of legislators, nor will it hold a statute invalid merely because it is deemed to be unwise or undemocratic.

See: Brown v. Board of Education of Topeka, Kansas; Dred Scott v. Sandford; Due Process of Law; Gibbons v. Ogden; Lochner v. New York; Marbury v. Madison; McCulloch v. Maryland; Separation of Powers; Supreme Court of the United States.

The principle by which courts can declare acts of either the executive branch or the legislative branch unconstitutional. The Supreme Court has exercised this power, for example, to revoke state laws that denied civil rights guaranteed by the Constitution. (See also checks and balances.)

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