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Judicial Review

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, which has ultimate judicial authority, it is a power possessed by most federal and state courts of law in the United States. The concept is an American invention. Prior to the early 1800s, no country in the world gave its judicial branch such authority.

In the United States, the supremacy of national law is established by Article VI, Clause 2, of the U.S. Constitution. Called the Supremacy Clause, it states that "This Constitution, and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land." It goes on to say that, "judges in every state shall be bound thereby." This means that state laws may not violate the U.S. constitution and that all state courts must uphold the national law. State courts uphold the national law through judicial review.

Through judicial review, state courts determine whether or not state executive acts or state statutes are valid. They base such rulings on the principle that a state law that violates the U.S. constitution is invalid. They also decide the constitutionality of state laws under state constitutions. If, however, state constitutions contradict the U.S. Constitution, or any other national statute, the state constitution must yield. The highest state court to decide such issues is the state supreme court.

While judicial review of state laws is clearly outlined in the supremacy clause, the Framers of the U.S. Constitution did not resolve the question of whether the federal courts should have this power over congressional and executive acts. 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.

In 1803, the issue was settled in marbury v. madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60, when the Supreme Court, for the first time, 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. During 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 invalidating state laws, the Marshall Court established the authority to overrule decisions of the highest state courts. In martin v. hunter's lessee, 14 U.S. 304, 4 L. Ed. 97 (1816), the Court referred to the supremacy clause to assert that its appellate power extended to state courts.

Following the Civil War, the Supreme Court grew concerned that the recently-passed Fourteenth Amendment would give the federal government too much power over state governments and individual rights. Therefore, it used the power of judicial review to strike down federal Civil Rights laws that sought to address racial discrimination in the former Confederate states. Beginning in 1890, the Court became embroiled in 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 means that in determining whether laws would meet constitutional muster, the Court was accused of 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—appointees that would 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 25 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.

Further readings

Dellinger, Walter, and Christopher H. Schroeder. 2003. "The Case for Judicial Review." Washington Post (December 6).

Curtis, Kent. 2003. "Judicial Review and Populism." Wake Forest Law Review 3 (summer): 313–74.

Kramer, Larry D. 2004. The People Themselves: Popular Constitutionalism and Judicial Review. New York: Oxford Univ. Press.

Lipkin, Robert Justin. 2000. Constitutional Revolutions: Pragmatism and the Role of Judicial Review in American Constitutionalism. Durham, N.C.: Duke Univ. Press.

Prakash, Saikrishna B., and John C. Yoo. 2003. "The Origins of Judicial Review." University of Chicago Law Review 70 (summer): 887–982.

Seidman, Louis Michael. 2001. Our Unsettled Constitution: A New Defense of Constitutionalism and Judicial Review. New Haven, Conn.: Yale Univ. Press.

Cross-references

Due Process of Law; Separation of Powers; Supreme Court of the United States.

judicial review

noun  judicial analysis, judiiial review, judicial scrutiny, legal analysis, legal review, legal scrutinySpecifically: judicial scrutiny
Associated concepts: appellate system, basis to appeal, grounds to appeal, judicial issue, jurisdiction, trial de novo

judicial review

in the constitutional law of the UK, control by courts over certain decisions taken by administrative and other decision-making bodies. The procedure is most often used in relation to the control by the courts of the administrative actions of public bodies. The general rule is that the courts will not interfere in the normal decision-making process. One of the most commonly applied rules is the need for a decision not to be ‘Wednesbury’ i.e. unreasonable. (Named after the case in which it was enunciated.) Under this rule the courts may interfere where the decision that has been taken is one that no reasonable body would have reached. It curbs excess of power, a concept known to Continental jurists as excès de pouvoir in France, where there is a long tradition of droit administratif, or administrative law. There are three main heads upon which administrative action is subject to control by judicial review: illegality, irrationality, and procedural impropriety. Traditional redress had been given and still is on the basis of ULTRA VIRES. Both in England and in Scotland, special procedures have been created to allow parties to obtain swift and competent decisions. Breaches of natural justice fall within the grounds of such review as a form of procedural impropriety. The situations in which the courts will intervene in Scotland are wider but the grounds are similar.
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