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Judicial Review

In the United States, the courts have the ability to scrutinize statutes, administrative regulations, and judicial decisions to determine whether they violate provisions of existing laws, or whether they violate the individual State or United States Constitution . A court having judicial review power, such as the United States Supreme Court, may choose to quash or invalidate statutes, laws, and decisions that conflict with a higher authority. Judicial review is a part of the checks and balances system in which the judiciary branch of the government supervises the legislative and executive branches of the government. To explore this concept, consider the following judicial review definition.

Definition of Judicial Review

  • Noun. The power of the U.S. Supreme Court to determine the constitutionality of laws, judicial decisions, or acts of a government official.

Origin:  Early 1800s  U.S. Supreme Court

judicial review

What is Judicial Review

While the authors of the U.S. Constitution were unsure whether the federal courts should have the power to review and overturn executive and congressional acts, the Supreme Court itself established its power of judicial review in the early 1800s with the case of Marbury v. Madison (5 U.S. (1 Cranch) 137, 2L Ed. 60). The case arose out of the political wrangling that occurred in the weeks before President John Adams left office for Thomas Jefferson.

The new President and Congress overturned the many judiciary appointments Adams had made at the end of his term, and overturned the Congressional act that had increased the number of Presidential judicial appointments. For the first time in the history of the new republic , the Supreme Court ruled that an act of Congress was unconstitutional. By asserting that it is emphatically the judicial branch ’s province to state and clarify what the law actually is, the court assured its position and power over judicial review.

Topics Subject to Judicial Review

The judicial review process exists to help ensure no law enacted, or action taken, by the other branches of government , or by lower courts, contradicts the U.S. Constitution. In this, the U.S. Supreme Court is the “supreme law of the land.” Individual State Supreme Courts have the power of judicial review over state laws and actions, charged with making rulings consistent with their state constitutions. Topics that may be brought before the Supreme Court may include:

  • Executive actions or orders made by the President
  • Regulations issued by a government agency
  • Legislative actions or laws made by Congress
  • State and local laws
  • Judicial error

Judicial Review Example Cases

Throughout the years, the Supreme Court has made many important decisions on issues of civil rights , rights of persons accused of crimes, censorship , freedom of religion, and other basic human rights.  Below are some notable examples.

Miranda v. Arizona (1966)

The history of modern day Miranda rights begins in 1963, when Ernesto Miranda was arrested for, and interrogated about, the rape of an 18-year-old woman in Phoenix, Arizona. During the lengthy interrogation, Miranda, who had never requested a lawyer , confessed and was later convicted of rape and sent to prison . Later, an attorney appealed the case, requesting judicial review by the Supreme Court, claiming that Ernesto Miranda’s rights had been violated, as he never knew he didn’t have to speak at all with the police.

The Supreme Court, in 1966, overturned Miranda’s conviction, and the court ruled that all suspects must be informed of their right to an attorney, as well as their right to say nothing, before questioning by law enforcement. The ruling declared that any statement, confession, or evidence obtained prior to informing the person of their rights would not be admissible in court. While Miranda was retried and ultimately convicted again, this landmark Supreme Court ruling resulted in the commonly heard “Miranda Rights” read to suspects by police everywhere in the country.

Weeks v. United States (1914)

Federal agents, suspecting Fremont Weeks was distributing illegal lottery chances through the U.S. mail system, entered and searched his home, taking some of his personal papers with them. The agents later returned to Weeks’ house to collect more evidence, taking with them letters and envelopes from his drawers. Although the agents had no search warrant , seized items were used to convict Weeks of operating an illegal gambling ring.

The matter was brought to judicial review before the U.S. Supreme Court to decide whether Weeks’ Fourth Amendment right to be secure from unreasonable search and seizure , as well as his Fifth Amendment right to not testify against himself, had been violated. The Court, in a unanimous decision, ruled that the agents had unlawfully searched for, seized, and kept Weeks’ letters. This landmark ruling led to the “ Exclusionary Rule ,” which prohibits the use of evidence obtained in an illegal search in trial .

Plessey v. Ferguson (1869)

Having been arrested and convicted for violating the law requiring “Blacks” to ride in separate train cars, Homer Plessey appealed to the Supreme Court, stating the so called “Jim Crow” laws violated his 14th Amendment right to receive “equal protection under the law.” During the judicial review, the state argued that Plessey and other Blacks were receiving equal treatment, but separately. The Court upheld Plessey’s conviction, and ruled that the 14th Amendment guarantees the right to “equal facilities,” not the “same facilities.” In this ruling, the Supreme Court created the principle of “ separate but equal .”

United States v. Nixon (“Watergate”) (1974)

During the 1972 election campaign between Republican President Richard Nixon and Democratic Senator George McGovern, the Democratic headquarters in the Watergate building was burglarized. Special federal prosecutor Archibald Cox was assigned to investigate the matter, but Nixon had him fired before he could complete the investigation. The new prosecutor obtained a subpoena ordering Nixon to release certain documents and tape recordings that almost certainly contained evidence against the President.

Nixon, asserting an “absolute executive privilege” regarding any communications between high government officials and those who assist and advise them, produced heavily edited transcripts of 43 taped conversations, asking in the same instant that the subpoena be quashed and the transcripts disregarded. The Supreme Court first ruled that the prosecutor had submitted sufficient evidence to obtain the subpoena, then specifically addressed the issue of executive privilege. Nixon’s declaration of an “absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances,” was flatly rejected. In the midst of this “Watergate scandal,” Nixon resigned from office just 15 days later, on August 9, 1974.

The Authority Behind Judicial Review

Interestingly, Article III of the U.S. Constitution does not specifically give the judicial branch the authority of judicial review. It states specifically:

“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.”

This language clearly does not state whether the Supreme Court has the power to reverse acts of Congress. The power of judicial review has been garnered by assumption of that power:

  • Power From the People . Alexander Hamilton, rather than attempting to prove that the Supreme Court had the power of judicial review, simply assumed it did. He then focused his efforts on persuading the people that the power of judicial review was a positive thing for the people of the land.
  • Constitution Binding on Congress . Hamilton referred to the section that states “No legislative act, therefore, contrary to the Constitution, can be valid,” and pointed out that judicial review would be needed to oversee acts of Congress that may violate the Constitution.
  • The Supreme Court’s Charge to Interpret the Law . Hamilton observed that the Constitution must be seen as a fundamental law, specifically stated to be the supreme law of the land. As the courts have the distinct responsibility of interpreting the law, the power of judicial review belongs with the Supreme Court.

What Cases are Eligible for Judicial Review

Although one party or another is going to be unhappy with a judgment or verdict in most court cases, not every case is eligible for appeal . In fact, there must be some legal grounds for an appeal, primarily a reversible error in the trial procedures, or the violation of Constitutional rights . Examples of reversible error include:

  • Jurisdiction . The court wrongly assumes jurisdiction in a case over which another court has exclusive jurisdiction.
  • Admission or Exclusion of Evidence . The court incorrectly applies rules or laws to either admit or deny the admission of certain vital evidence in the case. If such evidence proves to be a key element in the outcome of the trial, the judgment may be reversed on appeal.
  • Jury Instructions . If, in giving the jury instructions on how to apply the law to a specific case, the judge has applied the wrong law, or an inaccurate interpretation of the correct law, and that error is found to have been prejudicial to the outcome of the case, the verdict may be overturned on judicial review.

Related Legal Terms and Issues

  • Executive Privilege – The principle that the President of the United States has the right to withhold information from Congress, the courts, and the public, if it jeopardizes national security, or because disclosure of such information would be detrimental to the best interests of the Executive Branch .
  • Jim Crow Laws – The legal practice of racial segregation in many states from the 1880s through the 1960s. Named after a popular black character in minstrel shows, the Jim Crow laws imposed punishments for such things as keeping company with members of another race, interracial marriage, and failure of business owners to keep white and black patrons separated.
  • Judicial Decision – A decision made by a judge regarding the matter or case at hand.
  • Overturn – To change a decision or judgment so that it becomes the opposite of what it was originally.
  • Search Warrant – A court order that authorizes law enforcement officers or agents to search a person or a place for the purpose of obtaining evidence or contraband for use in criminal prosecution.

judicial review case meaning

judicial review

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Judicial  review is the idea, fundamental to the U.S. system of government, that the actions of the executive and legislative branches of government are subject to review and possible invalidation by the  judiciary . Judicial review allows the  Supreme Court  to take an active role in ensuring that the other branches of government abide by the  Constitution . 

The text of the Constitution does not contain a specific provision for the power of judicial review. Rather, the power to declare laws unconstitutional has been deemed an implied power, derived from Article III and Article VI of the  U.S. Constitution . Judicial review of the government was established in the landmark decision of  Marbury v. Madison , the first Supreme Court decision to strike down the act of Congress as unconstitutional, with the famous line from Chief Justice John Marshall: "It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each." 

While this case has served as the bedrock for judicial review ever since, courts nevertheless must be careful not to violate the Separation of Powers doctrine when engaging in judicial review. While of course it is the duty of the judiciary to interpret the law and decide which laws violate the Constitution, judges and justices understand that they must not usurp the legislative duty to create the law. While this consideration is often implicit, many judges and justices explicitly rely on it to guide their decision and craft their opinion . This principle is also often at the forefront of many important decisions in administrative law , where judicial officials must carefully strike the right balance between assessing the validity of executive agency actions without deciding what the law is for themselves. 

[Last updated in June of 2023 by the Wex Definitions Team ]

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  • The Power of Judicial Review

Article III of the U.S. Constitution describes the powers and duties of the judicial branch.  Nowhere does it mention the power of the courts to review actions of the other two branches, and possibly declare these actions unconstitutional.  This power, called Judicial Review , was established by the landmark decision in Marbury v. Madison , 1803.

“ It is emphatically the province and duty of the Judicial Department to say what the law is…If two laws conflict with each other, the Courts must decide on the operation of each.  So, if a law be in opposition to the Constitution… the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty .” Chief Justice Marshall, Marbury v. Madison, 1803  
  • Facts about Judicial Review
  • Possible Subjects of Judicial Review
  • No law or action can contradict the U.S. Constitution, which is the supreme law of the land.
  • The court can only review a law that is brought before it through a law suit.
  • State courts also have the power to review state laws or actions based upon their state constitutions.
  • Legislative actions (laws made by congress)
  • Executive actions (treaties, executive orders issued by the president, or regulations issued by a government agency)
  • State and local laws

Case Studies

Marbury v. madison , 1803.

  • Case History

When President John Adams did not win a second term in the 1801 election, he used the final days of his presidency to make a large number of political appointments.  When the new president (Thomas Jefferson) took office, he told his Secretary of State (James Madison), not to deliver the official paperwork to the government officials who had been appointed by Adams.  Thus the government officials, including William Marbury, were denied their new jobs.  William Marbury petitioned the U.S. Supreme Court for a writ of mandamus , to force Madison to deliver the commission.

Section 13 of the Judiciary Act of 1789 (a law written by Congress), gave the Supreme Court the authority to issue writs of mandamus to settle disputes such as the one described here.  This power to force actions of government officials went above and beyond anything mentioned in Article III of the Constitution.

Therefore, in addition to deciding whether or not William Marbury had a right to his job, the U.S. Supreme Court also had to decide whether or not Section 13 of the Judiciary Act was in violation of the Constitution (the birth of Judicial Review ).

This case did not reach the U.S. Supreme Court the way most issues do.  Most cases reach the Supreme Court as the court of last resort, when the Justices are asked to review a decision of a lower court.  In this case, William Marbury petitioned the U.S. Supreme Court directly due to the provision in Section 13 of the Judiciary Act of 1789.  Note:  The power to directly accept petitions such as these is not granted to the Supreme Court in the Constitution.

What Do You Think The U.S. Supreme Court Decided?

Though the Justices agreed that William Marbury had a right to his job, they also ruled that issuing the writ of mandamus to force that to happen did not fall under their jurisdiction as stated in the Constitution. The Supreme Court opinion explained that it is within their power and authority to review acts of Congress, such as the Judiciary Act of 1789, to determine whether or not the law is unconstitutional. By declaring Section 13 of the Judiciary Act of 1789 unconstitutional, the U.S. Supreme Court established the doctrine of Judicial Review.

The Supreme Court said “ The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the (first) part of the alternative be true, then a legislative act contrary to the Constitution is not law .” by author of opinion, Chief Justice John Marshall.

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  • The opinion of the U.S. Supreme Court
  • The official version of the opinion can be found in the U.S. Reports at your local law library. Marbury v. Madison , 5 U.S. 137 (1803)

Ladue v. Gilleo, 1994

In 1990, Margaret Gilleo placed a sign in the yard of her home in Ladue, Missouri. The sign said “Say No to War in the Persian Gulf, Call Congress Now.” The city of Ladue had a law against yard signs, and told Ms. Gilleo to take her signs down. Ms. Gilleo sued the city of Ladue for violating her 1 st Amendment rights.

Was Ladue’s law against signs unconstitutional?

Margaret Gilleo sued the city of Ladue in the U.S. District Court for the Eastern District of Missouri. The court ruled in her favor and stopped Ladue from enforcing the law. Ladue appealed the decision, and the Eighth Circuit Court of Appeals also found in Ms. Gilleo’s favor. The city of Ladue then asked the U.S. Supreme Court to review the case.

The U.S. Supreme Court affirmed the decision of the lower courts. Ladue’s law against yard signs violated the 1 st Amendment of the U.S. Constitution. The 1 st Amendment protects political speech, and banning yard signs takes away the main avenue by which people traditionally express their personal political views. The value of protecting personal political speech is more important than Ladue’s desire to keep the city free of clutter.

The Supreme Court said “ They may not afford the same opportunities for conveying complex ideas as do other media, but residential signs have long been an important and distinct medium of expression .” by author of opinion, Justice John Paul Stevens.

  • The official version of the opinion can be found in the U.S. Reports at your local law library. Ladue v. Gilleo , 512 U.S. 43 (1994)

Harper v. Virginia Board of Elections, 1966

Annie Harper was not allowed to register to vote in Virginia because she wasn’t able to pay the state’s poll tax. Virginia law required voters to pay $1.50 tax to register, with the money collected going to public school funding. Ms. Harper sued the Virginia Board of Elections, claiming the poll tax violated her 14 th Amendment right to equal protection. Note: The 24 th Amendment to the Constitution already banned poll taxes in federal elections, but not in state elections.

Was the Virginia law requiring a tax to vote in a state election unconstitutional?

The U.S. District Court dismissed Ms. Harper’s suit in favor of the Board of Elections. She then asked the U.S. Supreme Court to review the case.

The Supreme Court declared the Virginia poll tax law unconstitutional. By making it more difficult for poor people to vote, the state was violating the 14 th Amendment guarantee of equal protection. Voting is a fundamental right, and should remain accessible to all citizens. The amount of wealth someone has should have no bearing on their ability to vote freely.

The Supreme Court said “ We conclude that a State violates the …(Constitution).. …whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax …. Wealth or fee paying has, in our view, no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned. ” by author of opinion, Justice William O. Douglas

  • The official version of the opinion can be found in the U.S. Reports at your local law library. Harper v. Virginia Board of Elections , 383 U.S. 663 (1966)

judicial review case meaning

What Is Judicial Review?

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Judicial Review is the power of the U.S. Supreme Court to review laws and actions from Congress and the President to determine whether they are constitutional. This is part of the checks and balances that the three branches of the federal government use in order to limit each other and ensure a balance of power.

Key Takeaways: Judicial Review

  • Judicial review is the power of the U.S. Supreme Court to decide whether a law or decision by the legislative or executive branches of federal government, or any court or agency of the state governments is constitutional.
  • Judicial review is a key to the doctrine of balance of power based on a system of “checks and balances” between the three branches of the federal government.
  • The power of judicial review was established in the 1803 Supreme Court case of Marbury v. Madison . 

Judicial review is the fundamental principle of the U.S. system of federal government , and it means that all actions of the executive and legislative branches of government are subject to review and possible invalidation by the judiciary branch . In applying the doctrine of judicial review, the U.S. Supreme Court plays a role in ensuring that the other branches of government abide by the U.S. Constitution. In this manner, judicial review is a vital element in the separation of powers between the three branches of government .

Judicial review was established in the landmark Supreme Court decision of Marbury v. Madison , which included the defining passage from Chief Justice John Marshall: “It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.”

Marbury vs. Madison and Judicial Review

The power of the Supreme Court to declare an act of the legislative or executive branches to be in violation of the Constitution through judicial review is not found in the text of the Constitution itself. Instead, the Court itself established the doctrine in the 1803 case of Marbury v. Madison .

On February 13, 1801, outgoing Federalist President John Adams signed the Judiciary Act of 1801, restructuring the U.S. federal court system . As one of his last acts before leaving office, Adams appointed 16 (mostly Federalist-leaning) judges to preside over new federal district courts created by the Judiciary Act.

However, a thorny issue arose when new Anti-Federalist President Thomas Jefferson ’s Secretary of State, James Madison refused to deliver official commissions to the judges Adams had appointed. One of these blocked “ Midnight Judges ,” William Marbury, appealed Madison’s action to the Supreme Court in the landmark case of Marbury v. Madison , 

Marbury asked the Supreme Court to issue a writ of mandamus ordering the commission be delivered based on the Judiciary Act of 1789. However, Chief Justice of the Supreme Court John Marshall ruled that the portion of the Judiciary Act of 1789 allowing for writs of mandamus was unconstitutional.

This ruling established the precedent of judicial branch of the government to declare a law unconstitutional. This decision was a key in helping to place the judicial branch on a more even footing with the legislative and the executive branches. As Justice Marshall wrote:

“It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.”

Expansion of Judicial Review

Over the years, the US Supreme Court has made a number of rulings that have struck down laws and executive actions as unconstitutional. In fact, they have been able to expand their powers of judicial review.

For example, in the 1821 case of Cohens v. Virginia , the Supreme Court expanded its power of constitutional review to include the decisions of state criminal courts.

In Cooper v. Aaron in 1958, the Supreme Court expanded the power so that it could deem any action of any branch of a state's government to be unconstitutional.

Examples of Judicial Review in Practice

Over the decades, the Supreme Court has exercised its power of judicial review in overturning hundreds of lower court cases. The following are just a few examples of such landmark cases:

Roe v. Wade (1973): The Supreme Court ruled that state laws prohibiting abortion were unconstitutional. The Court held that a woman's right to an abortion fell within the right to privacy as protected by the Fourteenth Amendment . The Court’s ruling affected the laws of 46 states. In a larger sense, Roe v. Wade confirmed that the Supreme Court’s appellate jurisdiction extended to cases affecting women’s reproductive rights, such as contraception.

Loving v. Virginia (1967): State laws prohibiting interracial marriage were struck down. In its unanimous decision, the Court held that distinctions drawn in such laws were generally “odious to a free people” and were subject to “the most rigid scrutiny” under the Equal Protection Clause of the Constitution. The Court found that the Virginia law in question had no purpose other than “invidious racial discrimination.”

Citizens United v. Federal Election Commission (2010): In a decision that remains controversial today, the Supreme Court ruled laws restricting spending by corporations on federal election advertising unconstitutional. In the decision, an ideologically divided 5-to-4 majority of justices held that under the First Amendment corporate funding of political advertisements in candidate elections cannot be limited.

Obergefell v. Hodges (2015): Again wading into controversy-swollen waters, the Supreme Court found state laws banning same-sex marriage to be unconstitutional. By a 5-to-4 vote, the Court held that the Due Process of Law Clause of the Fourteenth Amendment protects the right to marry as a fundamental liberty and that the protection applies to same-sex couples in the same way it applies to opposite-sex couples. In addition, the Court held that while the First Amendment protects the rights of religious organizations to adhere to their principles, it does not allow states to deny same-sex couples the right to marry on the same terms as those for opposite-sex couples.

Updated by Robert Longley

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When it comes to legal disputes, the courts are the final deciders of what the Constitution means. This authority – known as judicial review – gives the Supreme Court and federal courts the authority to interpret the Constitution.

DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.

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The U.S. Supreme Court & the Legal Scope of Its Authority

The US Supreme Court takes its authority from Article III of the US Constitution, which established it as one of the three main organs of the federal government. Congress set up the Supreme Court, as well as the lower federal courts, with the Judiciary Act of 1789. While the original Court consisted of six justices, its membership varied between five and 10 justices until it was fixed at the current membership of nine after the Civil War. To preserve judicial independence, justices serve life terms once they have been appointed by the President and confirmed by the Senate. However, a justice sometimes may voluntarily step down.

The Supreme Court serves the critical function of protecting minority populations against laws passed by majorities that could infringe on their rights. This allows it to preserve fundamental American values at times when a popular majority may try to deviate from them. The Court also enforces the separation of powers and constitutional checks and balances by invalidating actions by the executive and legislative branches that exceed their powers. Through its appellate jurisdiction, it serves as the court of last resort for parties appealing decisions from lower courts. Decisions by the Supreme Court are final and may not be appealed further.

Jurisdiction of the Supreme Court

Under Section 2 of Article III, the Supreme Court holds original jurisdiction and appellate jurisdiction. Original jurisdiction means that the Supreme Court is the first venue to hear a dispute, while appellate jurisdiction means that the Supreme Court is reviewing a decision by a lower court for certain reasons. The Supreme Court's original jurisdiction generally applies to cases involving disputes between two or more US states and disputes involving representatives of foreign nations. Its appellate jurisdiction applies to other cases that implicate federal law or the Constitution. In most situations, the Court is not required to hear a specific case on appeal. It has the discretion to decide whether it should review a case under the Certiorari Act of 1925. Thus, getting a case to the Supreme Court involves asking for a writ of certiorari. On average, the Supreme Court grants about 2 percent of these petitions each year.

Certioriari is more likely to be granted when a case involves a very important social issue, or when lower federal courts have reached conflicting decisions on the issue.

The Power of Judicial Review

The Supreme Court can strike down any law or other action by the legislative or executive branch that violates the Constitution. This power of judicial review applies to federal, state, and local legislative and executive actions. The Constitution does not specifically provide for the power of judicial review. It arises instead from an 1803 decision known as Marbury v. Madison .

Under a clause in Section 13 of the Judiciary Act of 1789, the Supreme Court received original jurisdiction over "writs of mandamus." These may be issued to order a government official to comply with the law. When the plaintiff in Marbury asked the Court to issue a writ of mandamus, though, the Court refused for reasons unrelated to the facts of the case.

After Thomas Jefferson won the 1800 presidential election, outgoing President John Adams passed the Judiciary Act of 1801 before Jefferson could take office. Adams then used the new law to appoint 16 new circuit judges and 42 new justices of the peace. While the Senate approved these appointments, the Secretary of State needed to confirm them by delivering their commissions. When William Marbury did not receive his commission after being appointed as Justice of the Peace in the District of Columbia, he sued to compel Jefferson’s Secretary of State, James Madison, to deliver the commission.

Chief Justice John Marshall wrote that the plaintiff was correct in seeking a writ of mandamus as his remedy. However, Marshall found that the Court could not issue the writ because this clause of Section 13 violated Article III of the Constitution. This was because the clause extended the original jurisdiction of the Court beyond the scope provided by Section 2 of Article III. Moreover, Marshall interpreted the Supremacy Clause of the Constitution to prevent Congress from using its legislative power to alter the Constitution. This clause of Section 13 thus became the first of many laws struck down by the Supreme Court on constitutional grounds.

Last reviewed June 2023

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judicial review

  • The legal process by which courts assess if the laws created by the legislature or administrative actions by the executive branch are in line with the Constitution
  • The court utilized judicial review to determine whether the new law violated the Constitution.
  • As part of judicial review, the judge evaluated the constitutionality of the executive order.
  • Due to the process of judicial review, the controversial law was struck down as unconstitutional.
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Related overviews.

Marbury v. Madison

Supreme Court

John Marshall (1755—1835)

separation of powers

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Quick reference.

1 The principal means by which the High Court exercises supervision over public authorities in accordance with the doctrine of * ultra vires . The power of the High Court to exercise judicial review is often referred to as its supervisory jurisdiction. The mechanism for seeking judicial review is by making a claim under the procedure provided for in Rule 54 of the Civil Procedure Rules. Claims are made to the Administrative Division of the High Court. The common law grounds on which judicial review may be granted were defined in the case Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL) as illegality, irrationality, and procedural impropriety. In terms of the Human Rights Act1998, judicial review may also be used to challenge action by public authorities that is incompatible with the European Convention on Human Rights. If the claim for a judicial review is successful, the court may grant a quashing order, mandatory order, prohibiting order, declaration, or injunction; it may also award damages in certain circumstances.

2 In European Union law, the European Court of Justice has a judicial review function provided for under Article 230 of the EC Treaty. In terms of this provision, community acts (i.e. legally binding acts of the community institutions) are challengeable by means of judicial review on the grounds of lack of competence, infringement of an essential procedural requirement, or infringement of the Treaty or any rule of law relating to its application or misuse of powers. Action can be brought by an institution of the EU, a member state, or (in certain limited circumstances) an individual.

From:   judicial review   in  A Dictionary of Law »

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Judicial Review

Judicial review is the doctrine under which legislative or executive actions are subject to review by judiciary branch; this includes constitutionality check on laws and statutes.

Think of Judicial Review as a quality control inspector in a factory. The inspector (judiciary) checks the products (laws or executive actions) to make sure they meet certain standards (the Constitution).

Related terms

Marbury v. Madison : This is the landmark U.S. Supreme Court case that established the principle of judicial review.

Constitutionality : The condition of acting in accordance with an applicable constitution; laws must be in line with constitutional dictates.

Separation of Powers : A doctrine often associated with Montesquieu, it refers to division of governmental responsibilities into distinct branches to limit any one branch from exercising core functions of another.

" Judicial Review " appears in:

Subjects ( 3 ).

AP Comparative Government

AP US History

Intro to Political Science

Study guides ( 3 )

AP US Government - 1.10 Required Founding Documents

AP US Government - 2.8 The Judicial Branch

AP US Government - 2.11 Checks on the Judicial Branch

Practice Questions ( 20 + )

What is the principle of judicial review?

What landmark case established the principle of judicial review?

Which Supreme Court case established the practice of judicial review?

In the context of US government, what is "judicial review"?

What demonstrates judicial review as outlined in Marbury v. Madison?

Which consequence did judicial review in Marbury v Madison case have on future workings of Supreme Court?

Which court case established judicial review regarding conflicts between federal and state laws?

What is an example of judicial review serving as a check on Presidential actions?

Why has the practice of judicial review continued as a check on presidential authority since its inception?

How did the Supreme Court exercise judicial review in the landmark Marbury v. Madison case?

How does the Supreme Court's power of judicial review impact federal legislation?

Which Supreme Court case established the principle of judicial review?

What differentiates the power of Judicial Review from the power to declare executive actions unconstitutional?

Which historical event most directly influenced the establishment of judicial review within the United States system of government?

What could have been a potential outcome if the Supreme Court, in Marbury v. Madison, had chosen not to establish the principle of judicial review?

What impact does the U.S. Supreme Court's power of judicial review have on the legitimacy of its decisions?

Why has judicial review remained a key component of the U.S judicial system since Marbury v Madison?

What case established judicial review thus expanding judiciary’s powers?

What mechanism allows Congress to counteract the Supreme Court's power of judicial review?

How does the judicial review serve as a check on the legislative branch?

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The Oxford Handbook of U.S. Judicial Behavior

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The Oxford Handbook of U.S. Judicial Behavior

14 Judicial Review

Tom Clark is the Asa Griggs Candler Professor of Political Science at Emory University.

  • Published: 06 July 2017
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Judicial review is the power of a court to pass judgment on actions taken in other branches of government, most notably with respect to the constitutionality of legislation enacted by representative legislatures. It is a core feature of judicial power that is prominent in the American system and is increasingly prevalent around the world across all legal traditions. This chapter provides a brief overview of the historical origins and spread of the practice of judicial review. The chapter then reviews two streams of academic research––normative and empirical––that seek to understand the theoretical and practical implications of the practice of judicial review in a representative democracy. The chapter highlights fruitful avenues for future research at the intersection of these lines of inquiry.

Courts around the world often exercise the power to make declarations about the constitutionality of laws passed, and actions taken, by other branches of government. The process of allowing judges to review laws and actions is known as “judicial review” and constitutes an aspect of the judicial process to which scholars have paid great attention. Although judicial review comprises only one piece of the total body of nearly all courts’ dockets, some of the most politically salient and contentious decisions courts have made around the world are cases of judicial review. In this chapter, I first provide a brief overview of the practice of judicial review and what it entails. I then describe the origins of judicial review, starting with its intellectual roots in documents like the Magna Carta and leading up through the early years of the U.S. Constitution and following through the spread throughout the world of the contemporary, common practice. Next, I describe research on judicial review, examining both normative, philosophical work and more positive, empirical work. I conclude with some remarks on the current state of interest and knowledge about judicial review.

What Is Judicial Review?

In resolving disputes, between individuals, between individuals and the government, or between branches or levels of the government, courts must interpret the law and apply it to the question at hand in the case. Sometimes, though, there is conflict within the law. Two laws may prescribe inapposite actions. Particularly when those laws are hierarchically related—as in when a statute is in conflict with a constitution—judges exercise judicial review when they decide whether the “lower” law is invalid because of its inconsistency with the “higher” law. Below, I describe the emergence and evolution of this practice, but it is important to note at the outset that its intellectual roots lie in the observation that courts must interpret the law to apply it to individual cases, and it is unavoidable that at times some laws, because they were written at different times, for different purposes, or even intentionally, may conflict with each other. When one of those laws in a constitutional document—a law supreme to other laws, then it seems courts must opt to enforce the constitution rather than the legally inferior law.

A related issue concerns the locus of judicial review authority. In many common law systems, for example, any court with jurisdiction in a particular case may be competent to exercise judicial review. In other systems, though, judicial review is reserved to a designated court, perhaps one with a specialized constitutional function. Decentralized judicial review creates some opportunities, such as facilitating the adjudication of rights claims efficiently, without having to go to a special court. However, at the same time that opportunity creates the risk of disparate law governing different cases. A contemporary example concerns the state of same-sex marriage in the United States. In 2014, there were several cases pending before state and federal courts, challenging the constitutionality of state-level bans on same-sex marriage. Many judges, mostly federal judges, have declared those bans unconstitutional, though their decisions only have authority in their geographically defined jurisdictions. Therefore, whereas same-sex couples in Pennsylvania benefit from a federal judge’s opinion that bans on same-sex marriage violate the US Constitution, similar individuals in states like Georgia have not yet won such a case. Thus, whereas it is relatively easy for anyone affected to challenge the constitutionality of the same-sex marriage ban, there is not a uniform voice of constitutional law for the entire country.

At an opposite end of the spectrum are places like France, which traditionally did not have any possibility for judicial review in the context of individual cases. Prior to 2009, any law, once enacted and promulgated by the executive, could not be reviewed for its constitutionality. (Since the founding of the Fifth Republic, the particular circumstances under which a law might be challenged—and by whom—gradually evolved to a more permissive standard, even while retaining a strict prohibition on challenging laws as they are applied.) Since 2009, there has been a possibility of judicial review, through a procedure known as the question prioritaire de constitutionnalité , or QPC. QPC cases are decided only by the Conseil Constitutionnel and must be first verified by one of the high courts—administrative or judicial—and referred to the Conseil Constitutionnel. In other words, constitutional challenges are centralized in a single body and must pass through a series of demanding procedural tests and convince high judges of their importance before being addressed.

There are, moreover, other models of judicial review. In much of Latin America, for example, the recurso de amparo is essentially the most common form of judicial review and is open to citizens with low barriers. In Costa Rica, Sala IV of the Supreme Court of Justice has authority over constitutional claims, but it is easy to file a claim with the court. In some jurisdictions, like Colombia, these complaints number over 400,000 per year, as contrasted with the small numbers—one hundred or so—of constitutional claims adjudicated in places like the United States, France, or Chile. While there are important differences in how constitutional courts hear and process constitutional cases, the key issue here is that there is marked variation in what constitutional courts do with constitutional challenges.

In the next section, I describe the intellectual origins and spread of judicial review. In part, this history helps account for the different styles of judicial review, though there is more than historical accident to explain why some places exercise diffuse judicial review whereas others exercise centralized review, and why some places have extensive constitutional dockets whereas others have massive dockets. 1

Origins of Judicial Review

While the modern practice of judicial review has its origins in the federal and state judiciaries of the United States during the Founding era, the intellectual roots trace as far back as the Magna Carta. The Magna Carta was an agreement during the early thirteenth century between the king of England and the people of England that identified a number of principles limiting government power—in effect, rights. While debate exists about whether the Magna Carta in fact imposed meaningful limits on the monarch, the principle that government action may be limited by ex ante written agreements is at the core of judicial review. And, the Magna Carta has lived on as the symbol of government limited by written accord.

That principle would play a central role in the American Founding. The idea of writing a constitution that delegates government powers was to create an accountable government of limited powers, the implication being that exercises of authority in contravention of the constitution would be illegitimate. Who, though, would decide when government action crosses a constitutional line? That question, many have argued, was unresolved in the Constitution and remained a topic of speculation during the early years of the American Constitution. During the first decade of its existence, the U.S. Supreme Court reviewed the constitutionality of Acts of Congress as well as acts of state legislatures. However, it was not until the famous case of Marbury v. Madison (1803) that the Supreme Court first decided, in a formal opinion, that an Act of Congress was prohibited by the Constitution and therefore was not to be given effect.

Marbury is among the most famous cases in the history of American constitutional law. At stake in that case were a number of connected issues regarding early power struggles in America. However, the politically salient issue, from history’s perspective, concerns judicial appointments made by President Adams during his last days in office. The 1800 presidential election was a bitter one, pitting Adams and the Federalists against Thomas Jefferson and the Republicans. The dividing cleavage in this battle was the role, size, and strength of the federal government. Whereas Adams favored a strong national government, Jefferson thought the federal government should be sharply limited and prioritized states’ rights. In the wake of the election, but before the end of Adams’ term, there were a number of federal judicial posts that were vacant, including positions as Justices of the Peace in Washington, DC. Adams set out to fill them before leaving office. One judge, William Marbury, was nominated and confirmed to be Justice of the Peace in Washington, DC, the day before Jefferson was sworn in. However, Jefferson refused to deliver the paperwork to Marbury, who then sued James Madison, in his capacity of Secretary of State, seeking a writ of mandamus . Marbury brought the case directly to the U.S. Supreme Court.

When they considered the case, the justices faced a difficult situation. 2 If the Court were to rule against Jefferson and order Madison to deliver Marbury’s commission, there was a real chance that Jefferson would defy the Court and potentially retaliate. If the Court were to rule against Marbury, it would concede a political battle over the limits on executive power, implicitly limit the role of the Court in government, and make a decision that appeared, on its face, wrong. The genius of the Court’s decision in this case lies in its elegant solution. Led by Chief Justice John Marshall (who was a cousin and staunch political adversary of Jefferson), the Supreme Court held that (1) Marbury deserved to have his commission delivered by Madison but (2) the Supreme Court did not have the authority to grant the writ of mandamus , because the provision of the Judiciary Act of 1789 that was unconstitutional. The reason for holding the law unconstitutional was that, on Marshall’s reading of the law, it impermissibly created new original jurisdiction for the Supreme Court. The law could only give the Supreme Court appellate jurisdiction over writs of mandamus. The reason was that the Constitution clearly specifies which types of cases the Supreme Court can hear on “original” jurisdiction (meaning they can begin at the Supreme Court) and which types of cases the Supreme Court can only hear as an appellate court (meaning they must start elsewhere and work their way up to the Supreme Court). Because the Judiciary Act created a new type of original jurisdiction (i.e., the writ of mandamus) 3 the Act was inconsistent with the Constitution and therefore must be set aside. With this decision, Marshall not only took the high road on the political controversy—he was able to say that Marbury was in the right—but he also avoided the political conflict and turmoil that would follow if Jefferson ignored the Court’s order. However, perhaps more important, Marshall was able to establish the authority to exercise judicial review and declare Acts of Congress unconstitutional (and, seemingly, to oversee the executive branch). It may not have been a novel idea, but its use in this situation and the assent it attained from the elected branches marked the beginning of a judicial practice that has deepened and spread throughout the world ever since.

Since Marbury, the use and practice of judicial review has grown in depth and breadth. In the United States, federal courts continued to review the constitutionality of laws throughout the nineteenth century, though for most of that time declined to invalidate any as unconstitutional. There are, to be sure, notable exceptions, such as the U.S. Supreme Court’s decision in Scott v. Sanford , which invalidated the Missouri Compromise and is often credited with rendering unavoidable the Civil War. At the same time, judicial review began to spread to other parts of the world. Perhaps most important was the development of the writ of amparo in Mexico, which was an attempt to “introduce the basic principles of judicial review of the constitutionality of laws” in Mexico ( Zamudio 1979 : 309). Mexico’s innovation was to create a writ by which citizens could go to court to enforce individual rights against the government. And, the Mexican innovation has been attributed to the American experience, as recounted through de Tocqueville’s account of American politics and read by Mexican political figures. Moreover, just as in the American experience, the extent and import of judicial review has grown as the courts have extended the practice and attained political assent. Indeed, Mexican Constitution, both in the 1857 Constitution and during subsequent revisions, embodies the practice and subordinate laws have been written to formalize the practice ( Staton 2010 ; Zamudio 1979 : 315–16).

Throughout the nineteenth century, the practice of judicial review continued to spread throughout the world, especially through Latin America. The Mexican amparo served as a model for countries establishing constitutions and the rule of law through much of the twentieth century, especially South and Central American states. Today, most of the Latin American countries have a procedure like amparo to enable citizens to file constitutional claims before constitutional courts (e.g., Brewer-Carías 2009 ). Further abroad, places like Spain and the Philippines have adopted the amparo with similar outcomes—massive amounts of constitutional complaints being brought to a specialized constitutional tribunal. 4

At the same time, during the twentieth century, there was yet another period during which new constitutions were written—some at the end of World War II and others after the collapse of the Soviet Union—and many of the new constitutions adopted or created forms of judicial review that had by then become typical of Western systems with constitutional courts (see, e.g., Ginsburg 2008 ). Earlier in the twentieth century, after World War I, there was a smaller, but similar, spread of constitutional courts, including a Supreme Court in the Weimar Republic and a constitutional court in Austria. The 1920 Austrian constitution is often cited as one prototype for modern European constitutional courts. 5 The German case provide an interesting comparison to the Latin American amparo . In many ways, the intent is the same. The Constitutional Complaint , as it is known in Germany, provides a very flexible mechanism for bringing a complaint about an unconstitutional law to the German courts. However, as contrasted with Costa Rica and similar states with amparo , the constitutional complaint has relatively demanding standards. Not just anyone can bring a constitutional complaint at any time; instead there are restrictions and conditions that must be satisfied, which resemble in many aspects the American “case and controversy.” 6 Crucially, whereas the case and controversy rule is a judicially created doctrine in the United States, grounded in Article III, Section 2, of the Constitution, other countries often have more elaborate rules set out in their constitutions themselves. These rules may enumerate the kinds of claims that can be brought and/or the procedure for bringing constitutional cases. Moreover, whereas judicial review in the United States is a practice grounded in constitutional theory and judicial interpretation, in many countries judicial review is a process specifically authorized and detailed in the constitutions themselves. This is particularly true in most new constitutions.

Indeed, the prevalence of judicial review to a political culture in which individual rights are prominent or even central can be detected in twenty-first-century European politics. Supra-national institutions, such as the European Court of Human Rights and the European Court of Justice exist in large part to exercise a version of judicial review in which grievances about the conflict between laws can be resolved.

Research on Judicial Review

Two areas of research on judicial review have dominated the literature during much of the past one hundred years. Unfortunately, these literatures too often have not spoken directly to each other, though there are natural connections and important lessons that transcend the research programs (see, e.g., Friedman 2005 ).

Normative Concerns

Scholars of judicial review have puzzled at least since the end of the nineteenth century over the tension between a commitment to protecting individual rights via judicial review on one hand and the principle of democratic self-governance and accountability on the other hand. Commonly referred to as the “counter-majoritarian difficulty” (e.g., Bickel 1962 ), 7 the central puzzle can be summarized as follows. The signature intellectual feature of constitutionalism emerging from the era marked by the American and French Revolutions was that of liberal constitutionalism and the idea that one could create a government of limited powers. Liberal constitutionalism developed to entail two competing goals—government by majority rule and the protection of unalienable rights. A government of limited powers became synonymous with the idea of a written constitution and could, in theory, provide the basis for limiting the power of the people. The authority of the state would be under popular control, but there would be limits to the purposes to which that authority could be put. However, an inherent tension emerges in that any government powerful enough to carry out the powers of the state is also powerful enough to abuse individual rights, especially minority rights. How can one reconcile a commitment to giving the power of the state to elected majorities with the commitment to limit the power of those majorities? Clearly, something must give.

The innovation of judicial review provides a way to balance those goals. If the will of the people is to be limited by a written constitution, then there ought to be an institution or body responsible for identifying instances of transgression. Moreover, that body ought to be as removed from the elected majority as possible, for fear that the interpreter of government power be bound up with the government itself. The judiciary is the branch of government that is not directly accountable to the public (with limited exceptions, including many U.S. states, where judges are elected) and is charged not with making policy but with interpreting policy as made by legislative and executive officials in the process of applying those policies to individual cases. As John Marshall famously claimed in Marbury , in justifying the Supreme Court’s authority to invalidate a law via judicial review, “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”

The logic of Marshall’s claim is elegant. Courts are the institution charged with resolving disputes in individual cases. Doing so requires the capacity to interpret the law; it is a logical corollary of that responsibility. At the same time, it is unavoidable that at times, two laws will come into conflict. Courts must, therefore, have the capacity to decide what to do in such instances, which entails setting aside one law in favor of another. That this logical conclusion points to, of necessity, the authority to exercise judicial review follows directly from the principle that a constitution is the supreme law of the land.

However, as the use of judicial review by the judiciary grew over the course of the nineteenth century, scholars became increasingly concerned about the potential for the courts to usurp government authority and undermine the principle of self-government. As I explain later in this chapter, this period also marked the rise of legal realism, the view that judges do not merely interpret and apply the law as disinterested, neutral arbiters, but instead impose their own worldviews through the interpretation of the law. By the end of the nineteenth century, scholars were engaged in a heated debate about the conditions under which courts may legitimately exercise the power of judicial review. James Bradley Thayer published a landmark law review in 1893, entitled “The Origin and Scope of the American Doctrine of Constitutional Law,” which opened with the observation that state constitutions did not bestow upon the federal judiciary the power to declare legislation unconstitutional ( Thayer 1893 : 129). Thayer then criticizes the use of judicial review as being prone to abuse and inadequate for addressing the democratic deficiencies which defenders of minority rights argue is the justification for judicial review.

However, Thayer’s observation, rather than marking a point of resolution of the counter-majoritarian tension, would mark the beginning of a deep, complex intellectual struggle over judicial review. The early years of the twentieth century would witness increased “activism” by the U.S. Supreme Court, with important decisions such as Lochner v. New York serving as rallying calls for those concerned with judicial usurpation of policy-making powers, only a decade after Thayer’s essay.

Lochner was a case that came to the Supreme Court in 1904 and was decided in 1905. The issue was the following. The New York state legislature had enacted the Bakeshop Act in 1895. The law was meant to regulate the hours and sanitary conditions in bakeries. It is important to keep in mind the broader context in which this all took place. The late-nineteenth century was a period of considerable immigration and also of industrialization. Many unions worked to push for legislation to protect whites against immigrant labor (see, e.g., Kersch 2004 ). During these years, Upton Sinclair wrote The Jungle , which portrayed the unsanitary and dangerous working conditions immigrants found themselves in. It was under these circumstances that the Bakeshop Act imposed on bakers a limit of ten working hours per day and a weekly maximum of sixty hours. Lochner was a bakery owner convicted of violating the Bakeshop Act by allowing an employee to work over the limits. When the Supreme Court took up the Lochner case, it did so in the context of heated politics surrounding economic regulation, industrialization, and immigration. Conservatives of the time widely advanced a theory of “laissez-faire economics,” which held that the best policy is for government to stay out of regulating industry. Liberals, by contrast, adopted the view that with industrialization came relationships between employees and employers that were not just inherently unequal but prime to foster exploitation of the employee.

Its decision, which was decided by a 5–4 majority, held that the Bakeshop Act was unconstitutional because it violated a “liberty to contract” created by the Fourteenth Amendment. In the Court’s view, individuals were free to contract with employers, and restrictions on the working arrangements to which they could contract violated their liberty. The Court’s opinion claimed that being a baker is not hazardous to one’s health and that there is no reason why the State should be allowed to regulate baking. Justices Harlan and Holmes each wrote dissenting opinions, and Justice Holmes is perhaps the most often quoted. His dissent begins:

This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics. 8

The last line, referring to Spencer’s Social Statics refers to a mid-nineteenth-century libertarian political philosophy treatise by Herbert Spencer. Holmes’ opening paragraph was deeply incisive. He accuses the majority of using judicial review to pursue its own policy agenda. He also claims, presumably correctly, that the policy agenda advanced by the Court in the majority opinion was one of great public division. By claiming that the Fourteenth Amendment does not enact Social Statics , Holmes directly accuses the majority of trying to read into the Constitution a deeply divisive political philosophy of libertarianism. Following Lochner , reaction was at first mild but within months grew increasingly fierce. Libertarians rushed to praise the decision, whereas progressives and labor unions quickly denounced the decision ( Bernstein 2005 : 1500–1). Moreover, the course of history has had its way with Lochner , as it has become a symbol for conservative judicial activism and an expression to refer to the worst uses of judicial review. The critical point, though, is that with Lochner , the tension between judicial review and democratic governance was laid bare for the public, in the context of a national policy debate, for the second time in a half century. Moreover, the Court’s increased use of judicial review since the growth of the nation after the Civil War and with industrialization meant that this was not just an aberration like the Dred Scott case but was instead a fundamental tension in the Constitution with which we would have to wrestle.

Following Lochner , however, the Court’s laissez-faire approach to economic regulation persisted, as it increasingly brought the power of judicial review to bear on state regulations of employment conditions. Led by four justices known as the “Four Horsemen,” the Court developed a doctrine of substantive due process that would make it difficult for states or Congress to regulate the economy. The doctrine of substantive due process, coupled with a narrow reading of congressional powers under the Commerce Clause, would lead the Court, during the New Deal, into perhaps its greatest confrontation with the elected branches and a larger political battle about the role of judicial review in society.

Still the Court’s interpretation of the due process and commerce clauses did not spark the ire that it would during the 1930s. The Great Depression and New Deal legislative program that followed would mark an important point in the normative debate over judicial review. The Supreme Court, in reviewing President Roosevelt’s legislative efforts to overcome the depression, would adopt a rather suspect approach and invalidated a number of key provisions of the New Deal program. That those efforts were sometimes divided, and divided along generational and partisan lines, served to underscore the inherent difficulty associated with giving judges appointed to lifetime tenure an effective veto over elected majorities. If large legislative majorities could not enact regulatory legislation in a time of national—and, international—economic crisis because it did not comport with “out-of-date” understandings of the economy and the Constitution’s provisions pertaining thereto, then what had become of the principle of self-government. Was the American experience now one of a juristocracy, rather than a republican democracy? This question motivated a significant period of criticism of the Supreme Court (see, Clark 2011 : ch. 2). Indeed, it is notable that one of the earliest Gallup public opinion polls ever taken asked the public whether the Constitution should be amended to limit or take away the Court’s power to declare Acts of Congress unconstitutional. Fifty-nine percent of those who responded thought so ( Clark 2011 ).

However, while the Supreme Court did ultimately back down from its skeptical stance against the elected branches (more on this below), normative concern about the practice of judicial review continued. Indeed, in one watershed decision, US v. Carolene Products (1938), the Supreme Court noted (in the famous footnote 4 of the majority opinion) that it would shift its strictest applications of judicial review to specific kinds of cases—most specifically, those involving discrimination against “discrete and insular minorities.” Most notably, when the Supreme Court, in 1954, held unconstitutional the practice of racially segregating public schools, intellectuals were thrust into a difficult position. Liberals who had argued forcefully against the use of judicial review to invalidate legislation during the 1930s were now faced with a use of judicial review of which they morally approved. How could one square a desire to approve of Brown v. Board of Education with an intellectual position that calls for limiting judicial activism against the government?

In perhaps one of the most famous and important arguments on this subject, Alexander Bickel argued that the Supreme Court should exercise its “passive virtues” to decline to review cases where there are other branches or institutions more adequately prepared to resolve the controversy. Only when an issue is such that only the judiciary can be the one to resolve an inequity or injustice should the Court resort to constitutional judicial review. Bickel’s prescription, though, turned out to be insufficient just over a decade later when it seemed to justify the Court’s decision in Roe v. Wade , invalidating outright prohibition of abortion. Academics set out to outline a prescription for the use of judicial review that would simultaneously permit the Court’s invalidation of school segregation and proscribe the Court’s invalidation of abortion restrictions.

Among these proposals, John Hart Ely’s Democracy and Distrust (1980) is perhaps the most significant. Ely proposes that courts should be able to use judicial review when the inequities or rights violations are appropriate for judicial remedy, but only when those rights violations undermine the democratic process. In Ely’s view, the Constitution’s paramount goal is to ensure participation and democratic equality, when a majoritarian act is designed to inhibit or have the effect of inhibiting equal political participation, the Court should step in to correct the violation. Leveling the playing field, so to speak, allows the democratic process to work so that the majority can rule, but requires that minority voices and viewpoints be given their place in policy-making.

By the end of the twentieth century, however, debate moved away from an argument about the conditions that justify the exercise of judicial review to one about the role of myriad institutions in constitutional interpretation. The idea of “departmentalism” took hold, with scholars arguing that legislatures, executives, courts, and even the public all have a role in interpreting the Constitution. In this view, judicial decisions are but one part of a constitutional dialogue (see, e.g., Murphy 1986 ; Alexander and Schauer 1997 ; Whittington 2009 ). Others, including Tushnet (2000) and Kramer (2004) famously called for the people to engage in robust constitutional discourse to protect their rights themselves, rather than relying on the courts to do so. Eisgruber (2001) and Peretti (1999) argued that courts should engage in explicitly political judicial review in order to encourage and facilitate constitutional debate and respect for minority rights.

Debate about the appropriate role of judicial review in a democratic society continues. Of late, though, it has largely moved from a scholarly debate about the normative desirability of a counter-majoritarian check to a partisan debate about “judicial activism.” The phrase is one we hear often in political debates and the media, though it is rarely well conceptualized. Usually, it is used to criticize judicial decisions with which one disagrees. To conservatives, the Supreme Court’s decision to invalidate a portion of the Defense of Marriage Act was an example of “liberal judicial activism,” whereas the preceding day’s decision to invalidate the Voting Rights Act was a victory for liberty, “restor[ing] constitutional order.” 9 To liberals, the Voting Rights Act case was the worst kind of judicial activism, 10 whereas the DOMA decision as a triumph for equality. 11 Whether this debate is in the spirit of what scholars of constitutional theory have hoped for remains to be seen.

Empirical Patterns

Turning from normative to empirical scholarship on judicial review, there are (at least) two important issues to which research speaks. The first concerns how judicial review acts as a tool for conflict between the branches. The second examines how larger democratic institutions shape the consequences of judicial review. The empirical research, especially that motivated by the latter set of issues, has moved in recent years to speak more closely to the normative literature.

Beginning in the mid-twentieth century, scholars began to study the use of judicial review in the context of the countermajoritarian difficulty from a quantitative perspective. In a landmark study, Robert Dahl identified every instance in which an Act of Congress was struck down as unconstitutional (by the U.S. Supreme Court) and asked whether it seemed the Court was acting as an unduly anti-majoritarian Court ( Dahl 1957 ). Dahl’s finding is that legislation is very commonly invalidated within four years of enactment, and when legislation is struck down, enacting majorities usually have an opportunity to revisit the subject and pass new legislation. One reason, Dahl argues, is that 73 percent of Supreme Court vacancies take place within two years of the most recent vacancy. As a consequence, the Supreme Court is generally part of the dominant governing coalition.

While in many senses preliminary and less sophisticated than subsequent studies of judicial review, Dahl’s analysis highlights an important point that goes to the heart of normative debates about judicial review. Whereas the practice of judicial review might in theory be in tension with ideals of democratic majoritarianism, the method by which judges are selected implies a level of democratic representation on the courts that mitigates that tension.

While others have criticized Dahl’s study on various grounds—notably, Casper (1976) argues that by excluding Supreme Court review of state legislation, Dahl underestimates the Court’s countermajoritarianism—the crucial point remains unchallenged. However, it is important to note that the late twentieth century witnessed a period of relatively slow turnover on the Court. What is more, modern Supreme Court justices are increasingly insulated from the political process; with the retirement of Justice O’Connor in 2006, the Supreme Court had not a single member who had ever held elected office.

Indeed, Dahl’s thesis has served as a starting point for countless studies of judicial review. Scholars have probed the determinants of judicial votes to invalidate legislation (e.g., Howard and Segal 2004 ; Harvey and Friedman 2006 ; Lindquist and Solberg 2007 ; Keith 2008 ; Clark and Whittington n.d.) and largely concluded, not surprisingly, the decision to invalidate legislation is heavily attributed to attitudinal factors that influence most judicial choices (e.g., Segal and Spaeth 2002 ; Lindquist and Cross 2009 ) but that may be a modern-day phenomenon (see Epstein and Landes 2012 ).

Of course, these observations simply raise additional, empirically-driven concerns about the counter-majoritarian difficulty. If courts exercise judicial review in seemingly ideological ways, even if the majority selects who is on the court, does this not undermine the representative ideal? A series of studies I refer to collectively as “separation of powers analyses” look directly at this problem. The question motivating these studies is whether the courts are constrained by the elected branches. To the extent judicial review is limited by the authority of the elected branches, while one might worry more about the integrity of minority rights, majoritarian policy-making might find itself on stronger ground.

Many separation of powers analyses have studied statutory interpretation, though some of been concerned directly with judicial review. In these studies, a variety of theoretical mechanisms might constrain the use of judicial review. Epstein, Knight, and Martin (2001) argued, and Segal, Westerland and Lindquist (2011) demonstrate that the Supreme Court will exercise self-restraint when it is worried that Congress will diminish the Court’s power, through budgetary or similar means. Similarly, Vanberg (2005) argues that public support is critical to the meaningful exercise of judicial review. Because courts do not have the power to enforce their own decisions, they rely on political will to enforce their decisions; if elected officials decide to stand up against the courts, the whether the public supports the court or the elected officials will be the deciding factor for who “wins” in such a confrontation. A crucial component to Vanberg’s theory is that disputes between the courts and elected branches may involve complicated, or obtuse legal questions. The consequence is that the public will sometimes understand the issue at hand and sometimes not; the courts and elected officials must incorporate this prospect into their calculation about what will happen if they conflict. Staton (2010) extends that logic to examine how courts may engage with the public in order to clarify the issues at hand, through, for example, direct media action to inform the public. Clark (2011) proposes an alternative extension, claiming that political posturing by elected representatives, in the form of criticism of the Court, can be useful for figuring out where the public stands. The reason is, Clark observes, elected officials have a more direct connection with the public than the courts and therefore better information about whether the public will side with them in the event of a conflict with the courts.

Coming full circle to the Dahlian framework, Friedman (2010) documents an on-going, consistent pattern by which the courts respond to and in turn mold public opinion about hotly-debated policy and constitutional questions. The bottom line is that over time, public opinion affects judicial review in such a way that the meaning of the Constitution, as interpreted through judicial decisions, will in fact reflect popular opinion ( Friedman 2010 , 367–8). Thus, in many ways, the initial observation from Dahl still dominates the way in which scholars study the empirical use of judicial review. Judges may exercise judicial review in an ideologically-driven way, but the court is not entirely divorced from democratic accountability. Regular appointments to the courts by elected representatives ( Dahl 1957 ), institutional oversight and power ( Segal, Westerland, and Lindquist 2011 ; Rosenberg 1992 ), and the ultimate authority of the public will over both legislatures and courts ( Vanberg 2005 ) combine to create a system in which courts are simply part of a system of governance in which constitutional interpretation must take place, and institutional structures are designed to facilitate incorporating public sovereignty into the meaning of our laws.

Judicial review is an important institution in a liberal representative democracy. It provides a mechanism by which violations of constitutional rights or limitations can be addressed and remedied. The spread of the practice during the nineteenth and twentieth centuries has rendered it an omnipresent feature of modern democracy. However, with the rise of judicial review has come a series of normative and empirical debates about the use and practice of judicial review. Scholars have pondered how we can square judicial review with a commitment to majority rule, a question that really goes to the heart of the practice of liberal representative democracy. Empirical scholars have asked how, in practice, judicial review takes place in societies with powerful majoritarian institutions. These debates and lines of inquiry have been particularly acute in the context of constitution-writing and state-building that has characterized the last decade of the twentieth century and beginning of the current century. Perhaps even more so in an age where the tension between state power and individual rights have been in particular relief.

For one account of the tradeoffs and motivations behind different styles of constitutional dockets, see Clark and Staton (2015) .

For an overview of the strategic dilemma and a discussion of the problems confronting the justices, see Clinton (1994) and Knight and Epstein (1996) .

An interesting question concerns the implications of a similar action in which states or foreign ambassadors are the subjects of the lawsuit. In this instance, a plausible reading of the Constitution would enable the Court to take original jurisdiction over the case.

For a detailed description of the ruse of judicial review in democratic systems during the twentieth century, see Ginsburg (2003 : ch. 1).

The so-called Kelsenian constitutional court derives its name from Hans Kelsen, the author of several constitutions, notably the Austrian Constitution, during the early twentieth century.

For a thorough overview of the spread of judicial review and its various forms, see Ginsburg (2008) .

On the centrality of this debate to academic study of judicial review, see, for example, Friedman (2002) .

Lochner v. New York 198 U.S. 45, 75 (1905) (Holmes, J., dissenting).

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Casper, J. D. “ The Supreme Court and National Policy Making. ” The American Political Science Review 70(1): 50–63.

Clark, T. S.   2011 . The Limits of Judicial Independence . Cambridge: Cambridge University Press.

Clark, T. S. , and Staton, J. K.   2015 . “ An Informational Model of Constitutional Jurisdiction. ” Journal of Politics 77(3): 589–607.

Clark, T. S. , and Whittington, K. E. n.d. “Ideology, Partisanship, and Judicial Review of Acts of Congress, 1790–2006.” Emory University working paper.

Clinton, R. L.   1994 . “Game Theory, Legal History, and the Origins of Judicial Review: A Revisionist Analysis of Marbury v. Madison .” American Journal of Political Science 38(2): 285–302.

Dahl, R. A.   1957 . “ Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker. ” Journal of Public Law 6(2): 279–95.

Eisgruber, C. L.   2001 . Constitutional Self-Government . Cambridge, MA: Harvard University Press.

Ely, J. H.   1980 . Democracy and Distrust: A Theory of Judicial Review . Cambridge, MA: Harvard University Press.

Epstein, L. , Knight, J. , and Martin, A.   2001 . “ The Supreme Court as a Strategic National Policy Maker.”   Emory Law Journal 50(2): 583–611.

Epstein, L. and Landes, W. M.   2012 . ”Was There Ever Such a Thing as Judicial Self-Restraint? ” California Law Review 100: 557–78.

Friedman, B.   2002 . “ The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five. ” Yale Law Journal 112(1): 153–529.

Friedman, B.   2005 . “ The Politics of Judicial Review. ” Texas Law Review 84(2): 257–337.

Friedman, B.   2010 . The Will of the People . New York, NY: Farrar, Straus and Giroux.

Ginsburg, T.   2003 . Judicial Review in New Democracies: Constitutional Courts in Asian Cases . New York, NY: Cambridge University Press.

Ginsburg, T.   2008 . “The Global Spread of Constitutional Review,” in The Oxford Handbook of Law and Politics , edited by G. A. Caldeira , K. E. Whittington , and R. D. Keleman . New York, NY: Oxford University Press.

Harvey, A. , and Friedman, B.   2006 . “ Pulling Punches: Congressional Constraints on the Supreme Court’s Constitutional Rulings, 1987–2000. ” Legislative Studies Quarterly 31(4): 533–62.

Howard, R. M. , and Segal, J. A.   2004 . “ A Preference for Deference? The Supreme Court and Judicial Review. ” Political Research Quarterly 57(1): 131–43.

Keith, L. C.   2008 . The U.S. Supreme Court and the Judicial Review of Congress . New York, NY: Peter Lang.

Kersch, K. I.   2004 . Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law . New York, NY: Cambridge University Press.

Knight, J. , and Epstein, L.   1996 . “ On the Struggle for Judicial Supremacy. ” Law & Society Review 30(1): 87–120.

Kramer, L. D.   2004 . The People Themselves: Popular Constitutionalism and Judicial Review . New York, NY: Oxford University Press.

Lindquist, S. A. , and Cross, F. B.   2009 . Measuring Judicial Activism . Oxford: Oxford University Press.

Lindquist, S. A. , and Solberg, R. S.   2007 . “ Judicial Review by the Burger and Rehnquist Courts: Explaining Justices’ Responses to Constitutional Challenges. ” Political Research Quarterly 60(1): 71–91.

Murphy, W. F.   1986 . “ Who Shall Interpret? The Quest for an Ultimate Constitutional Interpreter. ” Review of Politics 48(3): 401–23.

Peretti, T. J.   1999 . In Defense of a Political Court . Princeton, NJ: Princeton University Press.

Rosenberg, G. N.   1992 . “ Judicial Independence and the Reality of Political Power. ” Review of Politics 54: 369–98.

Segal, J. A. , and Spaeth, H. J.   2002 . The Supreme Court and the Attitudinal Model Revisited . New York, NY: Cambridge University Press.

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Staton, J. K.   2010 . Judicial Power and Strategic Communication in Mexico . New York, NY: Cambridge University Press.

Thayer, J. B.   1893 . “ The Origin and Scope of the American Doctrine of Constitutional Law. ” Harvard Law Review 7(3): 129–56.

Tushnet, M.   2000 . Taking the Constitution away from the Courts . Princeton, NJ: Princeton University Press.

Vanberg, G.   2005 . The Politics of Constitutional Review in Germany . New York, NY: Cambridge University Press.

Whittington, K. E.   2009 . The Political Foundations of Judicial Supremacy . Princeton, NJ: Princeton University Press.

Zamudio, H. F.   1979 . “A Brief Introduction to the Mexican Writ of Amparo .” California Western International Law Journal 9(2): 306–48.

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Judicial review

Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body.

In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.

It is not really concerned with the conclusions of that process and whether those were ‘right’, as long as the right procedures have been followed. The court will not substitute what it thinks is the ‘correct’ decision.

This may mean that the public body will be able to make the same decision again, so long as it does so in a lawful way.

If you want to argue that a decision was incorrect, judicial review may not be best for you. There are alternative remedies, such as appealing against the decision to a higher court.

Examples of the types of decision which may fall within the range of judicial review include:

  • Decisions of local authorities in the exercise of their duties to provide various welfare benefits and special education for children in need of such education;
  • Certain decisions of the immigration authorities and the Immigration and Asylum Chamber;
  • Decisions of regulatory bodies;
  • Decisions relating to prisoner’s rights.

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  • admissibility
  • extinguishment
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  • extrajudicially
  • fatal accident inquiry
  • federal case
  • plea bargain
  • plea bargaining
  • power of attorney
  • the Webster ruling
  • walk free idiom
  • witness to something

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Georgia Court Will Hear Appeal of Ruling That Kept Prosecutor on Trump Case

The decision to hear the appeal reopens the possibility that Fani T. Willis, the Fulton County district attorney, could be disqualified from prosecuting Donald Trump and 14 allies over efforts to overturn the 2020 election.

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By Richard Fausset

The Georgia Court of Appeals will hear an appeal of a ruling that allowed Fani T. Willis, the district attorney in Fulton County, to continue leading the prosecution of former President Donald J. Trump on charges related to election interference, the court announced on Wednesday.

The decision to hear the appeal, issued by a three-judge panel, is all but certain to delay the Georgia criminal case against Mr. Trump and 14 of his allies, making it less likely to go to trial before the November election. Legal experts said it may take months for the appellate court to hear the case and issue a ruling.

The court’s terse three-sentence announcement reopened the possibility that Ms. Willis could be disqualified from the biggest case of her career, and one of the most significant state criminal cases in the nation’s history.

At issue is a romantic relationship she had with Nathan J. Wade, a lawyer she hired to handle the prosecution of Mr. Trump. Defense lawyers argued that the relationship amounted to an untenable conflict of interest, and that Ms. Willis and her entire office should be removed from the case.

But on March 15, Judge Scott McAfee of Fulton County Superior Court ruled that Ms. Willis could keep the case if Mr. Wade stepped away from it. Mr. Wade resigned a few hours after the judge issued his ruling.

Steven H. Sadow, the lead counsel for Mr. Trump in Georgia, said in a statement Wednesday that his client “looks forward to presenting interlocutory arguments to the Georgia Court of Appeals as to why the case should be dismissed and Fulton County D.A. Willis should be disqualified for her misconduct in this unjustified, unwarranted political persecution.”

A spokesman for Ms. Willis’s office declined to comment on the appeals court’s action.

The decision is yet another setback for Democrats who hoped the courts would hold Mr. Trump accountable before the presidential election for some of the most serious crimes he is accused of committing. Mr. Trump is currently on trial in New York in a case involving hush money, but trials in three other criminal cases against him, including the Georgia case, appear increasingly unlikely to begin before November, when voters will decide whether to return him to office.

Mr. Trump faces federal election interference charges in Washington, D.C., and a federal prosecution in Florida over mishandling of government documents.

The Georgia case was already in a kind of administrative limbo over the question of whether Mr. Trump is immune from prosecution related to his efforts to overturn his defeat in the 2020 presidential election loss — efforts that are at the heart of the state indictment handed up last summer by a Fulton County grand jury.

Mr. Trump has argued that presidential immunity, “rooted in the separation of powers and the text of the Constitution,” should shield him from being prosecuted for his actions in Georgia. Those efforts include a telephone call on Jan. 2, 2021, in which Mr. Trump pressed Brad Raffensperger, the Georgia secretary of state at the time, to help him “find” enough votes to overturn President Biden’s victory.

Mr. Trump has also raised the immunity issue in the federal election interference case in Washington, D.C.

The United States Supreme Court heard arguments about the immunity claim last month; it might not rule on the matter until late June or early July.

In Georgia, Ms. Willis’s office has told defense lawyers that it would not respond to Mr. Trump’s immunity motion in that case until after the Supreme Court’s decision.

Judge McAfee’s ruling in March had harsh words for Ms. Willis, even as it gave her a way to stay on the Trump case. Referring to the fact that Mr. Wade had gone on vacation trips with Ms. Willis and had paid for some of the costs, the judge wrote that a “financial cloud of impropriety” existed. He said Ms. Willis and Mr. Wade had engaged in “potential untruthfulness” in court hearings about the matter.

In the end, however, Judge McAfee wrote that disqualifying Ms. Willis would be overly drastic. He noted that Mr. Trump and his co-defendants had not shown that their right to due process had been violated, or “or that the issues involved prejudiced the defendants in any way.”

The appeal of Judge McAfee’s decision will slow the prosecution even more. “We’re now talking about this disqualification issue continuing on throughout the summer,” said Anthony Michael Kreis, a law professor at Georgia State University who has been following the case closely.

The appeal also spells a rockier road ahead for Ms. Willis, a Democrat who took office in 2021 and is now running for a second term.

Still, the appeal may ultimately have little bearing on her race in Fulton County, which is heavily Democratic.

While the appeal moves forward, a Republican-dominated committee of the State Senate, formed to investigate Ms. Willis, is starting its work.

On Tuesday, Ms. Willis — appearing with a number of Black church leaders who endorsed her re-election campaign — said that she did not think the committee had the right to subpoena her.

Ms. Willis also seemed to imply that the committee’s investigation amounted to political retaliation for her prosecution of Mr. Trump. She said she was sorry it annoyed some people “that everybody gets treated evenly.”

The appeal will be heard by a three-judge panel of the Georgia Court of Appeals.

Richard Fausset , based in Atlanta, writes about the American South, focusing on politics, culture, race, poverty and criminal justice. More about Richard Fausset

Our Coverage of the Trump Case in Georgia

Former president donald trump and 18 others face a sprawling series of charges for their roles in attempting to interfere in the state’s 2020 presidential election..

Fani Willis: Trump’s lawyers had argued that the Fulton County district attorney should be removed  from the case because of her relationship with Nathan Wade, a colleague and former romantic partner . A judge later ruled that Willis could continue leading the prosecution , but only if Wade withdrew from the case. Wade subsequently resigned .

Other Threats to Prosecution:  A special committee of the Georgia State Senate is also looking into accusations of misconduct by Willis , making it clear that the effort to disqualify her from the prosecution is not the only threat to her case .

RICO Charges:  At the heart of the indictment in Georgia  are racketeering charges under the state Racketeering Influenced and Corrupt Organizations Act . Here’s why such charges  could prove to be a powerful tool for the prosecution .

Who Else Was Indicted?:   Rudy   Giuliani , who led legal efforts in several states to keep the former president in power, and Mark Meadows , the former W hite House chief of staff, were among the 18 Trump allies  charged in the case.

Plea Deals: Sidney K. Powell , Kenneth Chesebro  and Jenna Ellis  — three lawyers indicted with Trump in the case — pleaded guilty and agreed to cooperate with prosecutors   against the former president.

NBC New York

High-profile New York lawyer says he tried to advise judge in Trump civil fraud case

Judge arthur engoron said he was "wholly uninfluenced.", by melissa russo and jonathan dienst • published may 8, 2024 • updated on may 9, 2024 at 8:25 am.

This story originally appeared on .

A high-profile New York real estate lawyer, whose law license was once suspended, said he approached the judge presiding over Donald Trump ’s civil fraud case to offer unsolicited advice about a law at issue in the case.

Attorney Adam Leitman Bailey made the claim during an interview with NBC New York, saying he spoke to Judge Arthur Engoron three weeks prior to the judge’s February decision to fine the former president $454 million for falsely inflating the value of his assets.

24/7 New York news stream: Watch NBC 4 free wherever you are

The judge, through a court spokesman, denied impropriety and said he was “wholly uninfluenced” by Mr. Bailey. New York’s judicial oversight body has now launched an investigation into the alleged interaction, according to sources familiar with the matter.

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"I actually had the ability to speak to him three weeks ago," Bailey said, during an on-camera interview with NBC New York on Feb. 16, the day the judge's decision was due. "I saw him in the corner [at the courthouse] and I told my client, 'I need to go.' And I walked over and we started talking … I wanted him to know what I think and why…I really want him to get it right."

Get Tri-state area news and weather forecasts to your inbox. Sign up for NBC New York newsletters.

NBC New York asked a spokesman for Engoron whether the judge had spoken with Bailey about any legal issues surrounding the Trump civil fraud matter , and whether the alleged interaction had been appropriate.

"No ex parte conversation concerning this matter occurred between Justice Engoron and Mr. Bailey or any other person. The decision Justice Engoron issued February 16 was his alone, was deeply considered, and was wholly uninfluenced by this individual,” said Al Baker, a spokesman for the New York State's Office of Court Administration, in a written statement

In legalese, the term "ex parte" describes a communication between a party or their legal counsel and a judge about a pending case without all the parties present.

Bailey, who said he is no fan of Trump, was not involved in the civil case and is not connected to any of the four separate criminal cases against the former president. He said he knows the judge from having appeared before him as a litigant "hundreds of times."

Bailey said he "explained to him" that a fraud statute at issue in the case was not intended to be used to shut down a major company, especially in a case without clear victims. He said such a ruling would hurt New York's economy. Engoron had rejected a similar argument raised by the Trump team in court.

"He had a lot of questions, you know, about certain cases. We went over it," Bailey said.

Baker, the court spokesman, did not reply when asked whether the judge had engaged with Bailey or asked questions.

State legal conduct rules govern interactions with judges about their pending cases outside of official courtroom proceedings.

The New York State Rules of Judicial Conduct state that "a judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers." The rules do allow an exception to "obtain the advice of a disinterested expert," if a judge gives notice to the parties in the case and gives them the opportunity to respond.

The New York State Commission on Judicial Conduct will now consider whether the rules of judicial conduct were violated in this instance, according to sources familiar with the matter.

The commission’s administrator, Robert Tembeckjian, declined to comment, citing a statute on confidentiality.

Christopher Kise, a member of the Trump defense team which has repeatedly criticized Engoron’s handling of the case, said if Bailey’s claims are true, it casts doubt on the integrity of the process.

"The code doesn’t provide an exception for 'well, this was a small conversation' or 'well, it didn’t really impact me' or 'well, this wasn’t something that I, the judge, found significant," Kise said. "No. The code is very clear."

Several experts consulted by NBC New York said the rules are meant not only to prevent outside influence, but also any appearance of outside influence.

Retired Presiding New York Appellate Justice Alan Scheinkman said he has questions about Bailey's account. However, he said in a case as consequential as the Trump civil fraud matter, if Bailey's allegation is true, it would have been prudent for Engoron to disclose the interaction to both parties in the case.

"If there's any substantive dialogue about the law in a pending case, it should be disclosed," Scheinkman said.

In a second on-camera interview with NBC New York, Bailey stood by his account, but said he didn’t think he or the judge had done anything wrong. Bailey said they only spoke about the law.

"We didn't even mention the word Donald Trump," Bailey said. When asked if he thought the judge understood him to be talking about the Trump case, he said: "Well, obviously we weren't talking about the Mets."

Scheinkman, who now teaches legal ethics at Pace University Law School, said the interaction described by Bailey is "very troubling."

"The fact that this lawyer made these statements — unprompted — during a recorded TV interview should raise serious concerns," Scheinkman said.

Professor Bruce Green, director of Fordham Law School's Center for Law and Ethics, said it's not against the rules for judges and lawyers to talk about the law in the abstract.

"Judges don't have to live in a bubble,” Green said. "Whether a judge's hallway conversation with a lawyer is permissible or impermissible depends on the conversation."

A spokeswoman for Attorney General Letitia James, who brought and won the civil case against Trump, declined to comment on Bailey's claims.

Bailey has appeared as an expert for two decades in The New York Times' "Ask Real Estate" column. In Nov. 2011, he sued the Trump Soho condominium, alleging that buyers were misled. In a settlement, Bailey’s clients got most of their money back and Trump admitted no wrongdoing.

In 2019, a New York appellate court suspended Bailey's law license for four months for misconduct in two separate matters. Bailey improperly used his cellphone to take photos of witnesses during an arbitration hearing and threatened to share them with the media, court records show. In the other incident, Bailey told a tenant in a case that they "should just kill themselves," according to the appellate court’s decision.

New York’s Rules of Professional Conduct say that lawyers should not “state or imply an ability” to improperly influence a judge.

Since February, both Bailey and the judge’s spokesman have stopped responding to NBC New York’s questions, declining to provide details that might shed light on the disparity between Bailey’s account of a dialogue, and the written denial from the court spokesman.

The Commission on Judicial Conduct investigates alleged improprieties involving state judges. Of nearly 3,000 complaints filed in 2023, only about 200 resulted in an investigation, according to the commission’s data. About one in four investigations resulted in a finding of wrongdoing, with consequences ranging from confidential letters of caution to a judge vacating the bench.

Investigations by the Commission on Judicial Conduct are conducted in secret, and can take anywhere from months to more than a year, according to recent annual reports.

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  1. Judicial Review

    The judicial review process exists to help ensure no law enacted, or action taken, by the other branches of government, or by lower courts, contradicts the U.S. Constitution. In this, the U.S. Supreme Court is the "supreme law of the land.". Individual State Supreme Courts have the power of judicial review over state laws and actions ...

  2. Judicial review

    judicial review, power of the courts of a country to examine the actions of the legislative, executive, and administrative arms of the government and to determine whether such actions are consistent with the constitution.Actions judged inconsistent are declared unconstitutional and, therefore, null and void. The institution of judicial review in this sense depends upon the existence of a ...

  3. judicial review

    judicial review. Judicial review is the idea, fundamental to the U.S. system of government, that the actions of the executive and legislative branches of government are subject to review and possible invalidation by the judiciary . Judicial review allows the Supreme Court to take an active role in ensuring that the other branches of government ...

  4. Judicial Review Landmark Cases

    Article III of the U.S. Constitution describes the powers and duties of the judicial branch. Nowhere does it mention the power of the courts to review actions of the other two branches, and possibly declare these actions unconstitutional. This power, called Judicial Review, was established by the landmark decision in Marbury v.

  5. What Is Judicial Review?

    Judicial review is the power of the U.S. Supreme Court to decide whether a law or decision by the legislative or executive branches of federal government, or any court or agency of the state governments is constitutional. Judicial review is a key to the doctrine of balance of power based on a system of "checks and balances" between the ...

  6. Judicial review in the United States

    In the United States, judicial review is the legal power of a court to determine if a statute, treaty, or administrative regulation contradicts or violates the provisions of existing law, a State Constitution, or ultimately the United States Constitution. While the U.S. Constitution does not explicitly define the power of judicial review, the ...

  7. Judicial review

    Judicial review is a process under which a government's executive, legislative, or administrative actions are subject to review by the judiciary. ... The difference is that in the first case, the decision about the law's adequacy to the Russian Constitution only binds the parties to the lawsuit; in the second, the Court's decision must be ...

  8. The Court and Constitutional Interpretation

    The Court is the highest tribunal in the Nation for all cases and controversies arising under the Constitution or the laws of the United States. As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.

  9. Court Shorts: Judicial Review

    When it comes to legal disputes, the courts are the final deciders of what the Constitution means. This authority - known as judicial review - gives the Supreme Court and federal courts the authority to interpret the Constitution. DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational ...

  10. Constitutional law

    Judicial review in the United States. Because judicial review in the United States has been a model for other countries, it is appropriate to devote some discussion to it and to the body of constitutional law it has produced. Despite its overwhelming importance, judicial review is not explicitly mentioned in the U.S. Constitution; indeed, it is itself a product of judicial construction.

  11. The U.S. Supreme Court & the Legal Scope of Its Authority

    The Power of Judicial Review. The Supreme Court can strike down any law or other action by the legislative or executive branch that violates the Constitution. This power of judicial review applies to federal, state, and local legislative and executive actions. The Constitution does not specifically provide for the power of judicial review.

  12. Historical Background on Judicial Review

    The Supreme Court first formally embraced the doctrine of judicial review in the 1803 case Marbury v. Madison. 8 Footnote 5 U.S. (1 Cr.) 137 (1803). ... 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. If there should happen to be an ...

  13. Marbury v. Madison

    Marbury v. Madison, legal case in which, on February 24, 1803, the U.S. Supreme Court first declared an act of Congress unconstitutional, thus establishing the doctrine of judicial review.The court's opinion, written by Chief Justice John Marshall, is considered one of the foundations of U.S. constitutional law.. Background. In the weeks before Thomas Jefferson's inauguration as president ...

  14. judicial review summary

    judicial review, Examination by a country's courts of the actions of the legislative, executive, and administrative branches of government to ensure that those actions conform to the provisions of the constitution.Actions that do not conform are unconstitutional and therefore null and void. The practice is usually considered to have begun with the ruling by the Supreme Court of the United ...

  15. judicial review Definition, Meaning & Usage

    Definition of "judicial review" The legal process by which courts assess if the laws created by the legislature or administrative actions by the executive branch are in line with the Constitution ; How to use "judicial review" in a sentence. The court utilized judicial review to determine whether the new law violated the Constitution.

  16. 19 The Power of Judicial Review

    The power of judicial review is one of the more distinctive features of the American constitutional system. The "fundamental law" quality of American constitutions and the possibility of judicial interpretation and enforcement of their provisions were often taken to be key features distinguishing the new constitutional system from the British inheritance.

  17. Judicial review

    The common law grounds on which judicial review may be granted were defined in the case Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL) as illegality, irrationality, and procedural impropriety. In terms of the Human Rights Act1998, judicial review may also be used to challenge action by public authorities ...

  18. Judicial Review

    Definition. Judicial review is the doctrine under which legislative or executive actions are subject to review by judiciary branch; this includes constitutionality check on laws and statutes. ... Which court case established judicial review regarding conflicts between federal and state laws?

  19. PDF Judicial Review Hearings: Keeping Courts on the Case

    In Washtenaw County, five district court judges hear domestic violence (DV) cases at four separate courthouses. Consequently, judges organize review hearing schedules across the courts to prevent overlapping review calendars. Each court has one day per week that is known locally as "DV Day.".

  20. Judicial Review

    A related issue concerns the locus of judicial review authority. In many common law systems, for example, any court with jurisdiction in a particular case may be competent to exercise judicial review. In other systems, though, judicial review is reserved to a designated court, perhaps one with a specialized constitutional function.

  21. JUDICIAL REVIEW definition

    JUDICIAL REVIEW meaning: 1. (in the UK) the process in which a decision made by a government department or other public…. Learn more.

  22. Judicial review

    Judicial review. Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached. It is not really concerned with the ...


    JUDICIAL REVIEW definition: 1. (in the UK) the process in which a decision made by a government department or other public…. Learn more.

  24. Application, Grounds and Remedies for Judicial Review

    Section 31 of the Senior Courts Act 1981 provides that applications for mandatory, prohibiting and quashing orders must be made by an application for judicial review. Injunctions can also be granted under section 31 (2) in judicial review cases. Section 31 (3) requires that permissions is needed for every application of judicial review.

  25. Georgia Court Will Hear Appeal of Ruling That Kept Prosecutor on Trump Case

    The decision to hear the appeal, issued by a three-judge panel, is all but certain to delay the Georgia criminal case against Mr. Trump and 14 of his allies, making it less likely to go to trial ...

  26. Attorney says he gave Trump trial judge unsolicited advice during civil

    A high-profile New York real estate lawyer, whose law license was once suspended, said he approached the judge presiding over Donald Trump 's civil fraud case to offer unsolicited advice about a ...