What is judicial review?

Judicial review is the power of courts to decide whether laws passed by Congress, actions taken by the executive branch, or laws passed by state legislatures are consistent with the Constitution, and to strike down those that are not. The power of judicial review is not explicitly mentioned in the Constitution. It was established by the Supreme Court itself in Marbury v. Madison (1803), one of the most important rulings in American legal history.

In that case, Chief Justice John Marshall held that it is emphatically the province and duty of the judicial department to say what the law is. If a law conflicts with the Constitution, Marshall reasoned, courts must follow the Constitution because it is the supreme law of the land. The case grew out of a political dispute. Outgoing President John Adams had made several last-minute appointments of justices of the peace, but Adams's Secretary of State, John Marshall (the same person who later wrote the opinion as Chief Justice), failed to deliver the commissions before leaving office. The new Jefferson administration refused to deliver them.

William Marbury, one of the appointees, sued in the Supreme Court for an order requiring delivery. Marshall held that Marbury was entitled to his commission, but that the law authorizing him to sue directly in the Supreme Court was itself unconstitutional. By striking down a small piece of the Judiciary Act of 1789, Marshall established the principle that the Supreme Court has authority to review and invalidate acts of Congress.

The power of judicial review has since been used many times. The Supreme Court has struck down laws that violated the First Amendment (such as restrictions on speech), the Fourth Amendment (such as warrantless searches), the Fifth and Fourteenth Amendments (such as racial discrimination), and other constitutional provisions. The Court has also reviewed presidential actions, striking down President Truman's seizure of steel mills during the Korean War in Youngstown Sheet & Tube Co. v. Sawyer (1952), and limiting executive orders that exceed presidential authority.

Judicial review is sometimes controversial. Critics argue it gives unelected judges too much power over democratic decisions. Defenders say it is essential to enforcing the Constitution and protecting individual rights against majoritarian pressures.