Judicial Review in the United States
Understanding Judicial Review
Judicial review is the power of courts to examine the constitutionality of legislative and executive actions and to invalidate those that violate the Constitution. In the United States, this power is exercised by both federal and state courts, with the Supreme Court serving as the final arbiter of constitutional questions. Judicial review is not explicitly granted by the Constitution but was established by the Supreme Court in Marbury v. Madison (1803).
The power of judicial review extends to all government action, including federal statutes, executive orders, administrative regulations, state laws, and state constitutional provisions. Courts may invalidate government action at any level if it conflicts with the United States Constitution. The exercise of judicial review ensures that government operates within constitutional limits and that individual rights are protected.
Marbury v. Madison and the Foundation
In Marbury v. Madison, 5 U.S. 137 (1803), Chief Justice John Marshall articulated the constitutional basis for judicial review. The case arose from President John Adams’s last-minute appointment of William Marbury as a justice of the peace in the District of Columbia. When the new administration of Thomas Jefferson refused to deliver Marbury’s commission, Marbury sought a writ of mandamus from the Supreme Court under Section 13 of the Judiciary Act of 1789.
Chief Justice Marshall held that while Marbury was entitled to his commission and a legal remedy existed, the Supreme Court lacked jurisdiction under Article III of the Constitution to hear the case. Section 13 of the Judiciary Act of 1789, which purported to grant the Court original jurisdiction over mandamus actions, was therefore unconstitutional because it expanded the Court’s original jurisdiction beyond what Article III permitted.
Marshall’s reasoning established three principles that remain foundational: the Constitution is the supreme law of the land and controls any inconsistent legislative act; the judiciary has the duty to interpret the law and to determine what the Constitution means; and a law repugnant to the Constitution is void, and courts must disregard it in deciding cases. Marshall declared: “It is emphatically the province of the judicial department to say what the law is.” This assertion established the Court’s authority to interpret the Constitution and invalidate conflicting laws.
Scope and Limitations
Judicial review extends to all cases arising under the Constitution, federal laws, and treaties. Courts may review federal statutes, executive actions, state laws, and state constitutional provisions for consistency with the United States Constitution. The power is subject to justiciability doctrines including standing, ripeness, mootness, and the political question doctrine, which limit the cases courts may hear.
Standing requires that the plaintiff suffer an injury in fact, that the injury be traceable to the defendant’s conduct, and that a favorable court decision likely redress the injury (Lujan v. Defenders of Wildlife, 1992). Ripeness requires that the case present an actual, present controversy rather than a hypothetical future dispute. Mootness bars adjudication when the controversy has been resolved or no longer exists, though exceptions exist for cases capable of repetition yet evading review.
The political question doctrine holds that certain constitutional issues are committed to the political branches and are not justiciable. In Baker v. Carr (1962), the Court identified factors indicating a political question, including a textually demonstrable constitutional commitment to another branch and a lack of judicially discoverable and manageable standards. Cases involving the Guarantee Clause, impeachment procedures, and foreign policy have been held to present political questions. However, the Court has narrowed the political question doctrine in recent decades, refusing to apply it to partisan gerrymandering in Rucho v. Common Cause (2019) (holding partisan gerrymandering claims present a political question) while applying it to other contexts.
Standards of Review
Courts apply different levels of scrutiny depending on the nature of the constitutional question. Rational basis review applies to most economic and social legislation, requiring only a legitimate government purpose and a rational means of achieving it. This deferential standard virtually always results in the law being upheld, as courts presume the constitutionality of legislative action.
Intermediate scrutiny applies to classifications based on gender and illegitimacy under equal protection analysis, and to content-neutral restrictions on speech. The law must be substantially related to an important government interest. Intermediate scrutiny is more demanding than rational basis but less demanding than strict scrutiny.
Strict scrutiny applies to classifications based on race, national origin, and laws burdening fundamental rights. The law must be narrowly tailored to serve a compelling government interest. Strict scrutiny is often described as “strict in theory, fatal in fact,” though the government occasionally satisfies it, particularly in national security contexts and certain affirmative action programs.
Theories of Constitutional Interpretation
Judges employ various interpretive approaches. Originalism holds that constitutional provisions should be interpreted according to their original public meaning at the time of ratification. Originalists argue that this approach constrains judicial discretion and respects democratic decision-making. Justice Scalia was the leading proponent of originalism on the Supreme Court.
The living constitution approach views the Constitution as evolving with societal change. Advocates argue that the Constitution’s broad phrases were intentionally designed to accommodate changing circumstances and that original meaning cannot resolve modern questions the Framers did not anticipate. Justice Brennan was a prominent advocate of this approach.
Textualism focuses on the plain meaning of the constitutional text, considering the words’ ordinary meaning at the time of enactment. Textualism is related to originalism but is more focused on the statutory or constitutional language itself. Structuralism derives meaning from the Constitution’s overall structure and the relationships among the branches of government.
The Countermajoritarian Difficulty
Judicial review presents a tension with democratic principles: unelected judges may invalidate laws enacted by democratically accountable representatives. This countermajoritarian difficulty has generated extensive scholarly debate about the legitimacy and proper scope of judicial review. Alexander Bickel coined the term and explored the tension between judicial review and democratic theory.
Proponents argue that judicial review protects minority rights and upholds constitutional limits that majorities might otherwise disregard. The Constitution is designed to protect certain values from majoritarian override, and judicial review ensures that these protections are enforced. Critics contend that judicial review is antidemocratic and that courts should defer to legislative judgments, except in cases implicating fundamental constitutional values.
Contemporary Significance
Judicial review remains a central feature of American constitutional governance. The Supreme Court exercises this power in cases involving federalism, individual rights, separation of powers, and statutory interpretation. Lower federal courts and state courts routinely engage in judicial review, applying Supreme Court precedent and independently interpreting the Constitution. The power of judicial review continues to evolve through new cases and changing judicial philosophies, ensuring that the Constitution remains a living constraint on government power.