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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 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)

what case judicial review

Legal Dictionary

The Law Dictionary for Everyone

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.

what case judicial review

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This Day In History : February 24

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Marbury v. Madison establishes judicial review

what case judicial review

On February 24, 1803, the Supreme Court , led by Chief Justice John Marshall , decides the landmark case of William Marbury v. James Madison, Secretary of State of the United States and confirms the legal principle of judicial review—the ability of the Supreme Court to limit Congressional power by declaring legislation unconstitutional—in the new nation.

The court ruled that the new president, Thomas Jefferson , via his secretary of state, James Madison , was wrong to prevent William Marbury from taking office as justice of the peace for Washington County in the District of Columbia. However, it also ruled that the court had no jurisdiction in the case and could not force Jefferson and Madison to seat Marbury. The Judiciary Act of 1789 gave the Supreme Court jurisdiction, but the Marshall court ruled the Act of 1789 to be an unconstitutional extension of judiciary power into the realm of the executive.

In writing the decision, John Marshall argued that acts of Congress in conflict with the Constitution are not law and therefore are non-binding to the courts, and that the judiciary’s first responsibility is always to uphold the Constitution. If two laws conflict, Marshall wrote, the court bears responsibility for deciding which law applies in any given case. Thus, Marbury never received his job.

Jefferson and Madison objected to Marbury’s appointment and those of all the so-called “midnight judges” appointed by the previous president, John Adams , after Jefferson was elected but mere hours before he took office. To further aggravate the new Democratic-Republican administration, many of these Federalist judges–although Marbury was not one of them–were taking the bench in new courts formed by the Judiciary Act, which the lame-duck Federalist Congress passed on February 13, 1801, less than a month before Jefferson’s inauguration on March 4.

As part of the “Revolution of 1800,” President Thomas Jefferson and his Democratic-Republican followers launched a series of attacks against the Federalist-controlled courts. The new Democratic-Republican-controlled Congress easily eliminated most of the midnight judges by repealing the Judiciary Act in 1802. They impeached Supreme Court justice Samuel Chase, but acquitted him amidst inter-party squabbles. The Chase acquittal coupled with Marshall’s impeccably argued decision put an end to the Jeffersonian attack.

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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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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.

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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.

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The power of judicial review, what is judicial review.

In America, judicial review refers to the power of the courts to examine laws and other government actions to determine if they violate or contradict previous laws, the state’s constitution, or the federal constitution. If a law is declared to be unconstitutional, it is overturned (or “struck down”) in whole or in part.

Judicial review is a vital and influential power that allows the judicial branch of the government to prevent local, state, and federal governments from taking unconstitutional actions.

While the Supreme Court has historically attempted to use its power to overturn laws as a last resort in cases where the law’s unconstitutionality is clear, the looming threat of judicial review influences legislators as they craft bills and regulations.

What Gives Courts the Power of Judicial Review?

Judicial review is not explicitly defined in the United States Constitution. Instead, it’s strongly implied when certain passages are considered together. The judicial system is given the final authority to determine which law to uphold, and in Article IV , the Constitution is named the “ supreme Law of the Land .” When combined, these elements seem to give courts the duty to uphold the Constitution over any contradictory laws whenever a discrepancy appears.

Did the Framers Intend Judicial Review?

Despite the lack of an explicit passage outlining the power of judicial review, modern scholars think that the framers of the Constitution very much intended this power to exist. The framers spoke a great deal about judicial review during the Constitutional Convention and during state ratification debates. The Federalist Papers referred to the concept several times, most extensively in Federalist no. 78 and Federalist no. 80. 

Additionally, six states explicitly stated that they thought that federal courts had the power to review the constitutionality of laws in their responses to the Kentucky and Virginia Resolutions in 1798. In other words, nearly half of the original thirteen states interpreted the Constitution as granting the judiciary the power of judicial review a scant handful of years after it was written and well before  Marbury v Madison .

Prior to Marbury v Madison

Federal courts examined the constitutionality of federal statutes several times before 1803, but no active law was overturned before  Marbury v Madison . In  Hayburn’s Case , decided in 1792, three federal circuit courts ruled that the same law was unconstitutional. The law delegated the review of pension applications to circuit court judges. These court decisions were appealed to the Supreme Court, but the law was repealed by legislators before the appeal could take place.

Judicial review of federal legislation occurred in 1796 in  Hylton v United States , but the Supreme Court held that the law in question was constitutional. The 1796 Supreme Court did strike down a Virginia statute concerning pre-Revolutionary War debts, finding the law in question contrary to a peace treaty between the US and Great Britain. Under the Constitution’s Supremacy Clause , the court struck the law down.

Between 1798 and 1800, the ruling in  Marbury v Madison  was foreshadowed clearly. The findings in the 1798 case  Hollingsworth v Virginia  relied on an interpretation of the Eleventh Amendment’s limitations on the jurisdiction that strongly implied that the Supreme Court would find the Judiciary Act of 1789 unconstitutional. 

Justice Chase penned the opinion in  Cooper v Telfair  in 1800 and included a statement that indicated that most judges felt that the Supreme Court had the power to find a federal law unconstitutional. However, it had not done so yet. The power was not exercised until  Marbury v Madison  in 1803.

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Marbury v Madison

In 1803, the Marshall court struck down the Judiciary Act of 1789. The law gave the Supreme Court the power to issue writs of mandamus that would force courts or officials to exercise their duties. Article III of the Constitution directly stated that the Supreme Court would have appellate jurisdiction over all but a very narrow subset of cases.  Marbury v Madison  held that the Judiciary Act of 1789 was unconstitutional. The Marshall court interpreted the Judiciary Act of 1789 as giving the court original jurisdiction over cases where a petitioner sought the court to issue a writ of mandamus.

Legal scholars have lauded the politics behind the exact ruling reached in  Marbury v Madison  for centuries. While the Supreme Court struck down the Judiciary Act, it did so in a way that benefited the incumbent administration. This gave little incentive for the administrative branch of the government to challenge the ruling in a way that would weaken the nascent Supreme Court’s power.

Some scholars theorize that the ruling was the only one that would have been enforced, as had the Supreme Court upheld the Judiciary Act of 1789 and issued a writ of mandamus, the Jefferson administration would have simply ignored the writ and weakened the Supreme Court forever.

Stare Decisis

Once  Marbury v Madison  was decided, judicial review became enshrined in law by a practice called stare decisis. Under stare decisis, courts attempt to let decisions and legal actions made by previous courts stand unless there’s a very strong reason to overturn them. The more a decision or action is relied upon for precedent, the less likely a future court is to overturn it.

For centuries, judicial review has been a key part of United States lawmaking and court cases. Even if something changed dramatically in our interpretation of the constitution that caused legal scholars to stop thinking that the constitution implied the power of judicial review, it’s doubtful that any court would overturn judicial review without a constitutional amendment.

Judicial Review Throughout History

After Marbury v Madison , the Supreme Court did not strike down a federal law as unconstitutional for fifty years. While the fear of judicial review being challenged and potentially overturned likely had something to do with this, it’s also worth noting that many of the framers of the constitution were alive during many of these fifty years and that legislators were respectful of the supremacy of the newly enshrined constitution. The Supreme Court did, however, hold that some state law was unconstitutional and had no qualms about using its judicial supremacy to strike such legislation down.

Dred Scott v Sandford

The next law to be struck down as unconstitutional was the Missouri Compromise, which outlined which new territories added to the United States would allow slavery. The case,  Dred Scott v Sandford,  was heard in 1857 and held that the United States Constitution never intended anyone of African descent to be considered a citizen of the United States. The Civil War occurred four years later.

Historians often point to the  Dred Scott  decision as one of the turning points in the rising tension between slaveholding states and the free North. In 1865, the 13th amendment overturned  Dred Scott  by abolishing slavery and explicitly granting citizenship to all persons born or naturalized in the United States .

Modern Judicial Review

Judicial review is a cornerstone of the modern United States. By 2017, 182 federal statutes had been held unconstitutional in whole or in part. Justices have traditionally erred on the side of caution and attempted to exercise the power of judicial review as a last resort.

That said, the court’s history of striking down laws suggests that either lawmakers are being more brazen in their efforts to skirt the edges of what the constitution allows, or the Supreme Court is more willing to step in and intercede on edge cases. Modern political discussions surrounding abortion , gun control , and religious freedom often center around the Supreme Court’s constitutional interpretation and the amendments that surround those issues.

Recent applications of judicial review include:

  • Citizens United v Federal Election Commission  (2010), in which the court struck down a law that interfered with the ability of corporations and associations to spend money on election advertising.
  • National Federation of Independent Business v Sebelius  (2012), in which the court upheld the constitutionality of much of the Patient Protection and Affordable Health Care Act, sometimes called “Obamacare.”

The Court’s Reluctance To Strike Down Laws

In general, the Supreme Court has attempted to avoid ruling on the constitutionality of a law if it can decide the issue before it by any other means. When it must challenge the constitutionality of a law, it attempts to do so in the most limited way possible, striking down as little of the law as it can. Justice Brandeis famously outlined seven rules that the Supreme Court tends to follow when it reviews laws:

  • The court requires a live, contentious case before it will rule.
  • It will not issue opinions in advance of a case.
  • It will interpret the constitution as narrowly as it can.
  • A ruling on the constitutionality of a law is only used as a last resort if other factors cannot decide the case.
  • One of the petitioners in the case must have actually been adversely affected by the unconstitutional law.
  • Someone who benefits from a law cannot challenge its constitutionality.
  • The law will be interpreted in the most favorable way regarding its constitutionality.

Preventing Judicial Review

Under Article III of the Constitution, Congress can curtail the Supreme Court’s appellate jurisdiction. This means that Congress can limit the authority of the Supreme Court to hear cases regarding certain laws. This power has occasionally been utilized, although not always successfully. Notably, the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 were ruled unconstitutional despite language in both laws that attempted to limit their ability to be reviewed by courts.

Alicia Reynolds

One response.

This is an unbalanced view of what is clearly a substantial flaw in the American system of governance. The notion that 5 justices can overrule the House and the Senate and the President is absurd and objectionable on the ground that there are much more cooperative ways to deal with mistakes in statutes … and in readings of a 18th century document that has produced innumerable embarrassing judgments.

Clean this up! Please!

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Judicial Review

SECTION 2. Clause 1. 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;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States,—between Citizens of the same State claiming Land under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Annotations

Judicial review is one of the distinctive features of United States constitutional law. It is no small wonder, then, to find that the power of the federal courts to test federal and state legislative enactments and other actions by the standards of what the Constitution grants and withholds is nowhere expressly conveyed. But it is hardly noteworthy that its legitimacy has been challenged from the first, and, while now accepted generally, it still has detractors and its supporters disagree about its doctrinal basis and its application. 726 Although it was first asserted in Marbury v. Madison 727 to strike down an act of Congress as inconsistent with the Constitution, judicial review did not spring full-blown from the brain of Chief Justice Marshall. The concept had been long known, having been utilized in a much more limited form by Privy Council review of colonial legislation and its validity under the colonial charters, 728 and there were several instances known to the Framers of state court invalidation of state legislation as inconsistent with state constitutions. 729

Practically all of the framers who expressed an opinion on the issue in the Convention appear to have assumed and welcomed the existence of court review of the constitutionality of legislation, 730 and prior to Marbury the power seems very generally to have been assumed to exist by the Justices themselves. 731 In enacting the Judiciary Act of 1789, Congress explicitly provided for the exercise of the power, 732 and in other debates questions of constitutionality and of judicial review were prominent. 733 Nonetheless, although judicial review is consistent with several provisions of the Constitution and the argument for its existence may be derived from them, these provisions do not compel the conclusion that the Framers intended judicial review nor that it must exist. It was Chief Justice Marshall’s achievement that, in doubtful circumstances and an awkward position, he carried the day for the device, which, though questioned, has expanded and become solidified at the core of constitutional jurisprudence.

Marbury v. Madison. —Chief Justice Marshall’s argument for judicial review of congressional acts in Marbury v. Madison 734 had been largely anticipated by Hamilton. 735 Hamilton had written, for example: “The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” 736

At the time of the change of administration from Adams to Jefferson, several commissions of appointment to office had been signed but not delivered and were withheld on Jefferson’s express instruction. Marbury sought to compel the delivery of his commission by seeking a writ of mandamus in the Supreme Court in the exercise of its original jurisdiction against Secretary of State Madison. Jurisdiction was based on § 13 of the Judiciary Act of 1789, 737 which Marbury, and ultimately the Supreme Court, interpreted to authorize the Court to issue writs of mandamus in suits in its original jurisdiction. 738 Though deciding all the other issues in Marbury’s favor, the Chief Justice wound up concluding that the § 13 authorization was an attempt by Congress to expand the Court’s original jurisdiction beyond the constitutional prescription and was therefore void. 739

“The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States,” Marshall began his discussion of this final phase of the case, “but, happily, not of an intricacy proportioned to its interest.” 740 First, Marshall recognized certain fundamental principles. The people had come together to establish a government. They provided for its organization and assigned to its various departments their powers and established certain limits not to be transgressed by those departments. The limits were expressed in a written constitution, which would serve no purpose “if these limits may, at any time, be passed by those intended to be restrained.” Because the Constitution is “a superior paramount law, unchangeable by ordinary means, . . . a legislative act contrary to the constitution is not law.” 741 “If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect?” The answer, thought the Chief Justice, was obvious. “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.” 742

“So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.” 743

“If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.” 744 To declare otherwise, Chief Justice Marshall said, would be to permit the legislature to “pass[ ] at pleasure” the limits imposed on its powers by the Constitution. 745

The Chief Justice then turned from the philosophical justification for judicial review as arising from the very concept of a written constitution, to specific clauses of the Constitution. The judicial power, he observed, was extended to “all cases arising under the constitution.” 746 It was “too extravagant to be maintained that the Framers had intended that a case arising under the constitution should be decided without examining the instrument under which it arises.” 747 Suppose, he said, that Congress laid a duty on an article exported from a state or passed a bill of attainder or an ex post facto law or provided that treason should be proved by the testimony of one witness. Would the courts enforce such a law in the face of an express constitutional provision? They would not, he continued, because their oath required by the Constitution obligated them to support the Constitution and to enforce such laws would violate the oath. 748 Finally, the Chief Justice noted that the Supremacy Clause (Art. VI, cl. 2) gave the Constitution precedence over laws and treaties, providing that only laws “which shall be made in pursuance of the constitution” shall be the supreme law of the land. 749

The decision in Marbury v. Madison has never been disturbed, although it has been criticized and has had opponents throughout our history. It not only carried the day in the federal courts, but from its announcement judicial review by state courts of local legislation under local constitutions made rapid progress and was securely established in all states by 1850. 750

Judicial Review and National Supremacy. —Even many persons who have criticized the concept of judicial review of congressional acts by the federal courts have thought that review of state acts under federal constitutional standards is soundly based in the Supremacy Clause, which makes the Constitution, laws enacted pursuant to the Constitution, and treaties the supreme law of the land, 751 and which Congress effectuated by enacting § 25 of the Judiciary Act of 1789. 752 Five years before Marbury v. Madison , the Court held invalid a state law as conflicting with the terms of a treaty, 753 and seven years after Chief Justice Marshall’s opinion it voided a state law as conflicting with the Constitution. 754

Virginia provided a states’ rights challenge to a broad reading of the Supremacy Clause and to the validity of § 25 in Martin v. Hunter’s Lessee 755 and in Cohens v. Virginia . 756 In both cases, it was argued that while the courts of Virginia were constitutionally obliged to prefer “the supreme law of the land,” as set out in the Supremacy Clause, over conflicting state constitutional provisions and laws, it was only by their own interpretation of the supreme law that they as courts of a sovereign state were bound. Furthermore, it was contended that cases did not “arise” under the Constitution unless they were brought in the first instance by someone claiming such a right, from which it followed that “the judicial power of the United States” did not “extend” to such cases unless they were brought in the first instance in the courts of the United States. But Chief Justice Marshall rejected this narrow interpretation: “A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the Constitution or a law of the United States, whenever its correct decision depends upon the construction of either.” 757 Passing on to the power of the Supreme Court to review such decisions of the state courts, he said: “Let the nature and objects of our Union be considered: let the great fundamental principles on which the fabric stands, be examined: and we think, the result must be, that there is nothing so extravagantly absurd, in giving to the Court of the nation the power of revising the decisions of local tribunals, on questions which affect the nation, as to require that words which import this power should be restricted by a forced construction.” 758

726 See the richly detailed summary and citations to authority in G. Gunther, Constitutional Law 1–38 (12th ed. 1991); For expositions on the legitimacy of judicial review, see L. Hand, The Bill Of Rights (1958); H. Wechsler, Principles, Politics,and Fundamental Law : Selected Essays 1–15 (1961); A. Bickel, The Least Dangerous Branch : The Supreme Court At The Bar Of Politics 1–33 (1962); R. Berger, Congress V. The Supreme Court (1969). For an extensive historical attack on judicial review, see 2 W. Crosskey, Politics And The Constitution In The History Of The United States chs. 27–29 (1953), with which compare Hart, Book Review , 67 Harv. L. Rev. 1456 (1954). A brief review of the ongoing debate on the subject, in a work that now is a classic attack on judicial review, is Westin, Introduction: Charles Beard and American Debate over Judicial Review, 1790–1961 , in C. Beard, The Supreme Court And The Constitution 1–34 (1962 reissue of 1938 ed.), and bibliography at 133–149. While much of the debate focuses on judicial review of acts of Congress, the similar review of state acts has occasioned much controversy as well.

727 5 U.S. (1 Cr.) 137 (1803). A state act was held inconsistent with a treaty in Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796).

728 J. Goebel, supra at 60–95.

729 Id. at 96–142.

730 M. Farrand, supra at 97–98 (Gerry), 109 (King), 2 id. at 28 (Morris and perhaps Sherman). 73 (Wilson), 75 (Strong, but the remark is ambiguous). 76 (Martin), 78 (Mason), 79 (Gorham, but ambiguous), 80 (Rutledge), 92–93 (Madison), 248 (Pinckney), 299 (Morris), 376 (Williamson), 391 (Wilson), 428 (Rutledge), 430 (Madison), 440 (Madison), 589 (Madison); 3 id. at 220 (Martin). The only expressed opposition to judicial review came from Mercer with a weak seconding from Dickinson. “Mr. Mercer . . . disapproved of the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be uncontroulable.” 2 id. at 298. “Mr. Dickinson was strongly impressed with the remark of Mr. Mercer as to the power of the Judges to set aside the law. He thought no such power ought to exist. He was at the same time at a loss what expedient to substitute.” Id. at 299. Of course, the debates in the Convention were not available when the state ratifying conventions acted, so that the delegates could not have known these views about judicial review in order to have acted knowingly about them. Views, were, however, expressed in the ratifying conventions recognizing judicial review, some of them being uttered by Framers. 2 J. Elliot, Debates In The Several State Conventions On The Adoption Of The Federal Constitution (1836). 131 (Samuel Adams, Massachusetts), 196–197 (Ellsworth, Connecticut). 348, 362 (Hamilton, New York): 445–446. 478 (Wilson, Pennsylvania), 3 id. at 324–25, 539, 541 (Henry, Virginia), 480 (Mason, Virginia), 532 (Madison, Virginia), 570 (Randolph, Virginia); 4 id. at 71 (Steele, North Carolina), 156–157 (Davie, North Carolina). In the Virginia convention, John Marshall observed if Congress “were to make a law not warranted by any of the powers enumerated, it would be considered by the judge as an infringement of the Constitution which they are to guard . . . They would declare it void . . . . To what quarter will you look for protection from an infringement on the constitution, if you will not give the power to the judiciary? There is no other body that can afford such a protection.” 3 id. at 553–54. Both Madison and Hamilton similarly asserted the power of judicial review in their campaign for ratification. The Federalist (J. Cooke ed. 1961). See Nos. 39 and 44, at 256, 305 (Madison), Nos. 78 and 81, at 524–530, 541–552 (Hamilton). The persons supporting or at least indicating they thought judicial review existed did not constitute a majority of the Framers, but the absence of controverting statements, with the exception of the Mercer-Dickinson comments, indicates at least acquiescence if not agreements by the other Framers. To be sure, subsequent comments of some of the Framers indicate an understanding contrary to those cited in the convention. See, e.g. , Charles Pinckney in 1799: “On no subject am I more convinced, than that it is an unsafe and dangerous doctrine in a republic, ever to suppose that a judge ought to possess the right of questioning or deciding upon the constitutionality of treaties, laws, or any act of the legislature. It is placing the opinion of an individual, or of two or three, above that of both branches of Congress, a doctrine which is not warranted by the Constitution, and will not, I hope, long have many advocates in this country.” State Trials Of The United States During The Administrations Of Washington And Adams 412 (F. Wharton ed., 1849). Madison’s subsequent changes of position are striking. His remarks in the Philadelphia Convention, in the Virginia ratifying convention, and in The Federalist, cited above, all unequivocally favor the existence of judicial review. And in Congress arguing in support of the constitutional amendments providing a bill of rights, he observed: “If they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislature or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights,” 1 Annals Of Congress 457 (1789); 5 Writings Of James Madison 385 (G. Hunt ed., 1904). Yet, in a private letter in 1788, he wrote: “In the state constitutions and indeed in the federal one also, no provision is made for the case of a disagreement in expounding them; and as the courts are generally the last in making the decision, it results to them by refusing or not refusing to execute a law, to stamp it with the final character. This makes the Judiciary Department paramount in fact to the legislature, which was never intended and can never be proper.” Id. at 294. At the height of the dispute over the Alien and Sedition Acts, Madison authored a resolution ultimately passed by the Virginia legislature which, though milder, and more restrained than one authored by Jefferson and passed by the Kentucky legislature, asserted the power of the states, though not of one state or of the state legislatures alone, to “interpose” themselves to halt the application of an unconstitutional law. 3 I. Brant, James Madison : Father Of The Constitution, 1787–1800 460–464, 467–471 (1950); Report on the Resolutions of 1798, 6 Writings of James Madison, op. cit., 341–406. Embarrassed by the claim of the nullificationists in later years that his resolution supported their position, Madison distinguished his and their positions and again asserted his belief in judicial review. 6 I. Brant, supra , 481–485, 488–489. The various statements made and positions taken by the Framers have been culled and categorized and argued over many times. For a recent compilation reviewing the previous efforts, see R. Berger, supra, chs. 3–4.

731 Thus, the Justices on circuit refused to administer a pension act on the grounds of its unconstitutionally, see Hayburn’s Case , 2 U.S. (2 Dall.) 409 (1792), and “Finality of Judgment as an Attribute of Judicial Power,” supra. Chief Justice Jay and other Justices wrote that the imposition of circuit duty on Justices was unconstitutional, although they never mailed the letter, supra, in Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796), a feigned suit, the constitutionality of a federal law was argued before the Justices and upheld on the merits, in Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1797), a state law was overturned, and dicta in several opinions asserted the principle. See Calder v. Bull, 3 U.S. (3 Dall.) 386, 399 (1798) (Justice Iredell), and several Justices on circuit, quoted in J. Goebel, supra, at 589–592.

732 In enacting the Judiciary Act of 1789, 1 Stat. 73, Congress chose not to vest “federal question” jurisdiction in the federal courts but to leave to the state courts the enforcement of claims under the Constitution and federal laws. In § 25, 1 Stat. 85, Congress provided for review by the Supreme Court of final judgments in state courts (1) “. . . where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity;” (2) “. . . where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favor of their validity;” or (3) “. . . where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed” thereunder. The ruling below was to be “re-examined and reversed or affirmed in the Supreme Court . . . .”

733 See in particular the debate on the President’s removal powers, discussed supra, “The Removal Power” with statements excerpted in R. Berger, supra at 144– 150. Debates on the Alien and Sedition Acts and on the power of Congress to repeal the Judiciary Act of 1801 similarly saw recognition of judicial review of acts of Congress. C. Warren, supra at 107–124.

734 5 U.S. (1 Cr.) 137 (1803).

735 The Federalist , Nos. 78 and 81 (J. Cooke ed. 1961), 521–530, 541–552.

736 Id., No. at 78, 525.

737 1 Stat. 73, 80.

738 The section first denominated the original jurisdiction of the Court and then described the Court’s appellate jurisdiction. Following and indeed attached to the sentence on appellate jurisdiction, being separated by a semicolon, is the language saying “and shall have power to issue . . . writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.” The Chief Justice could easily have interpreted the authority to have been granted only in cases under appellate jurisdiction or as authority conferred in cases under both original and appellate jurisdiction when the cases are otherwise appropriate for one jurisdiction or the other. Textually, the section does not compel a reading that Congress was conferring on the Court an original jurisdiction to issue writs of mandamus per se .

739 Marbury v. Madison, 5 U.S. (1 Cr.) 137, 173–180 (1803). For a classic treatment of Marbury , see Van Alstyne, A Critical Guide to Marbury v. Madison , 1969 Duke L. J. 1.

740 5 U.S. at 176. One critic has written that by this question Marshall “had already begged the question-in-chief, which was not whether an act repugnant to the Constitution could stand, but who should be empowered to decide that the act is repugnant.” A. Bickel, supra at 3. Marshall, however, soon reached this question, though more by way of assertion than argument. 5 U.S. (1 Cr.) at 177–78.

741 5 U.S. at 176–77.

742 5 U.S. at 177.

743 5 U.S. at 178.

744 5 U.S. at 177–78.

745 5 U.S. at 178.

746 5 U.S. at 178. The reference is, of course, to the first part of clause 1, § 2, Art. III: “The judicial power shall extend to all Cases . . . arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority. . . .” Compare A. Bickel, supra at 5–6, with R. Berger, supra at 189–222.

747 5 U.S. at 179.

748 5 U.S. at 179–80. The oath provision is contained in Art. VI, cl. 3. Compare A. Bickel, supra at 7–8, with R. Berger, supra at 237–244.

749 5 U.S. at 180. Compare A. Bickel, supra at 8–12, with R. Berger, supra at 223–284.

750 E. Corwin, The Doctrine Of Judicial Review 75–78 (1914); Nelson, Changing Conceptions of Judicial Review: The Evolution of Constitution Theory in the State, 1790–1860 , 120 U. Pa. L. Rev. 1166 (1972).

751 2 W. Crosskey, supra at 989. See the famous remark of Holmes: “I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as the laws of the several States.” O. Holmes, Collected Legal Papers 295–296 (1921).

752 1 Stat. 73, 85, quoted supra.

753 Ware v. Hylton, 3 U.S. (3 Dall.) 190 (1796).

754 Fletcher v. Peck, 10 U.S. (6 Cr.) 87 (1810). The case came to the Court by appeal from a circuit court and not from a state court under § 25. Famous early cases coming to the Court under § 25 in which state laws were voided included Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122 (1819); and McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).

755 14 U.S. (1 Wheat.) 304 (1816).

756 19 U.S. (6 Wheat.) 264 (1821).

757 19 U.S. at 379.

758 19 U.S. at 422–23. Justice Story traversed much of the same ground in Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816). In Ableman v. Booth, 62 U.S. (21 How.) 506 (1859), the Wisconsin Supreme Court had declared an act of Congress invalid and disregarded a writ of error from the Supreme Court, raising again the Virginia arguments. Chief Justice Taney emphatically rebuked the assertions on grounds both of dual sovereignty and national supremacy. His emphasis on the indispensability of the federal judicial power to maintain national supremacy, to protect the states from national encroachments, and to make the Constitution and laws of the United States uniform all combine to enhance the federal judicial power to a degree perhaps beyond that envisaged even by Story and Marshall. As late as Williams v. Bruffy, 102 U.S. 248 (1880), the concepts were again thrashed out with the refusal of a Virginia court to enforce a mandate of the Supreme Court. See also Cooper v. Aaron, 358 U.S. 1 (1958).

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The Oxford Handbook of the U.S. Constitution

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19 The Power of Judicial Review

Keith E. Whittington is William Nelson Cromwell Professor of Politics in the Department of Politics at Princeton University.

  • Published: 12 November 2015
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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. For many decades, the United States was practically unique in empowering judges to set aside duly passed legislation and to enforce a higher law against all other government officials. In the twentieth century, however, some mechanism of constitutional review has been widely adopted throughout the world, expanding the idea of binding legislatures with supreme law even if many countries have departed from the particular mechanism of American-style judicial review.

It is a bit of an embarrassment that such a fundamental aspect of American constitutionalism was not explicitly incorporated into the texts of any constitutions in the United States. Article III of the U.S. Constitution that describes the federal judiciary says little about its powers. The text simply vests all the “judicial power” in the federal courts. What might be included in that delegation of authority is left implicit. The state constitutions were no more explicit. 1 By the Progressive era, that lack of a clear textual foundation for the power of judicial review led many to question its legitimacy, but the Founding generation appeared to have few such concerns. When state and federal courts declared that they had the power to set aside statutory requirements that conflicted with the Constitution, there was no general uproar and no clamor to deny that courts possessed such authority.

This chapter focuses on the contemporary exercise of judicial review. After delineating the scope of the institution, the chapter turns to conceptual and normative issues associated with the exercise of judicial review. It then reviews the literature on how judicial review is practiced in the American system.

I. What is Judicial Review?

Judicial review is traditionally understood to be the power of the courts to interpret the constitution and refuse to enforce legislative provisions that they understand to be in conflict with it. The term “judicial review” is of modern origin, but the practice of judicial invalidation of unconstitutional acts dates from the early republic. 2 By the end of the nineteenth century the practice of courts declaring statutes null and void had become almost routine, and scholars felt around for an economical way to refer to this increasingly important practice. The political scientist Edward Corwin (1910) coined the term that stuck, comparing the process by which courts enforced constitutional law against legislatures with the way in which courts monitored administrative agencies for their compliance with statutory requirements. 3 Judicial review, in a constitutional sense, emphasized the ways in which the legislature itself was bound by and inferior to the law and the role of the courts in upholding legal obligations.

The American version of judicial review is not the only way of structuring such a power, and the contours of American-style judicial review may be clarified if they are contrasted with some alternatives. One way of classifying judicial review is in terms of its subjects. Courts might review the actions of other coordinate branches of the same government, or they might review the actions of governments below them in a political or legal hierarchy. The United States Supreme Court exercises both forms of judicial review. It exercises horizontal judicial review when it evaluates the actions of other government officials in the federal government, primarily Congress. It exercises vertical judicial review when it evaluates the actions of government officials in state and local governments.

The Court has been more active in exercising vertical judicial review across its history. The actual exercise of the power of vertical judicial review has often been controversial, but the power of the federal courts to engage in such review has not generally been controversial. Starting with the nullification of a Georgia statute purporting to rescind land grants in Fletcher v. Peck (1810), the U.S. Supreme Court has frequently and regularly reviewed the constitutionality of state actions. Over the course of the twentieth century, the Court struck down state statutes at a clip of nearly ten per year. The fact that these cases involve local legislation does not mean that they are not important. As state policies often deal with fundamental features of social and economic life, these cases include some of the most controversial and far-reaching decisions that the Court has issued, ranging from the prohibition of racial segregation in Brown v. Board of Education (1954) to the overturning of abortion laws in Roe v. Wade (1973).

The U.S. Supreme Court has won political favor by being activist in the exercise of vertical judicial review. National political actors often welcome the work by the federal courts in monitoring state and local officials and enforcing national constitutional sensibilities against local majorities. James Madison had thought that some form of national veto over state policies would be essential to the success of a constitutional federation, and there was widespread agreement among the framers of the U.S. Constitution that the federal courts armed with the supremacy clause was at least a necessary, if not sufficient, check on rogue states. The supremacy clause of the U.S. Constitution specified that the “Constitution, and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land,” notwithstanding state constitutions or laws. All judges in the Union were instructed to implement that principle of national supremacy. The first Congress reinforced that plan with the adoption of Section 25 of the Judiciary Act of 1789, which authorized the U.S. Supreme Court to hear appeals from state supreme courts in cases in which the validity of federal laws had been questioned or federal rights denied. The constitutionality of Section 25 was itself challenged by some radical Jeffersonians, such as Virginia’s judge Spencer Roane, but such arguments were forcefully rejected by the U.S. Supreme Court in Martin v. Hunter’s Lessee (1816), and efforts to repeal the statutory provision went nowhere in a Jeffersonian and Jacksonian Congress. To Roane’s argument that each state court was independently responsible for interpreting the requirements of the federal constitution and could not be made inferior to a federal court, nationalists responded that the need for national uniformity in the law necessitated that the U.S. Supreme Court have the final say. Vertical judicial review not only promoted the nationalization of constitutional rights and the supremacy of federal laws and treaties, but also discouraged state interference with the interests of other states through protectionist economic measures and self-serving policies.

Horizontal judicial review is perhaps more fraught with political risks for the courts. When reviewing the constitutionality of the actions of coordinate government officials, judges risk challenging officials with more tools available with which to sanction the courts and with more substantial political support. National political actors may well welcome a federal judiciary that keeps idiosyncratic states in line. They may be less welcoming if those same judges turned their attentions to the policies adopted by those national officials. The problem of runaway states ignoring national interests was more evident than the problem of a national legislature not being adequately disciplined to adhere to the terms of the national constitution. Horizontal judicial review followed from the assumptions of the constitutional system, but laying down its foundations was not a priority in the 1780s. In practice, the U.S. Supreme Court has struck down federal laws on fewer occasions than they have struck down state laws (though certainly there are far more state laws to consider), and the Court has generally issued fewer direct challenges to important policies favored by national political officials than they have the favored policies of state officials. The conflicts between the Franklin Roosevelt administration and the Supreme Court over the constitutionality of the New Deal in the mid-1930s is a notable exception, and that battle resulted in a threat of Court-packing and a hasty retreat by the justices.

American-style judicial review is rooted in the “judicial power” in a significant way. Judges in the United States understood the power of judicial review to arise from their general duty to interpret and apply the law, all of it, with an appropriate effort to respect hierarchies among and to reconcile conflicts within different sources of law. Likewise, the power of judicial review was limited to situations in which the application of constitutional law was necessary to resolving an ordinary legal dispute. Constitutional questions were generally “concrete,” raised by attorneys in the context of a specific application of the law as a strategy for advancing a party’s general legal position. As a consequence, any judge could potentially be called upon to interpret and apply constitutional law and to set aside conflicting statutes. The power of judicial review was among the tools to be deployed by ordinary judges in the ordinary litigation process. As Justice James Iredell observed, this is a power of a “delicate and awful nature” ( Calder v. Bull , 1798).

Public officials in other countries have tended to shrink from giving their ordinary judges such power. The resistance to the power of judicial review was fed by the sense that such decisions were unavoidably political, in that they raised fundamental questions about the nature of the political system, and that the skills and talents valued in ordinary judges did not give them any special faculty for making such decisions. Moreover, unlike the political system of selecting judges that predominated in the United States, many other democracies had designed their judicial systems as bureaucratic, civil service institutions. To occasionally ask a professional judge who was skilled at resolving civil disputes or overseeing a criminal prosecution to also determine basic constitutional rights or arbitrate disputes between the branches of government seemed misguided.

The ultimate solution, pioneered in Austria in the early twentieth century, was to create a specialized constitutional court. Constitutional questions of interest to government officials could be posed to a body of experts outside the context of an ordinary legal proceeding, and perhaps even before a relevant statute was adopted. Constitutional questions could be considered in the abstract, and the avenues available for posing such questions to the constitutional court could be designed to be either narrow (allowing only a select few to ask the court for a constitutional ruling) or broad (allowing many to petition for such a ruling). The members of the constitutional court could be subjected to a political selection process and sit for limited terms, and could possess different skills and experiences than the individuals who served as ordinary judges. The Austrian approach, widely adopted across the globe, embraced abstract constitutional review by specialized bodies, but not concrete judicial review by ordinary judges. 4

By contrast, the American commitment to integrating the power of judicial review into the judicial power is embodied in the case-or-controversy requirement. Article III of the U.S. Constitution specifies the possible jurisdiction of the federal courts, authorizing federal judges to hear legal disputes raised by certain kinds of litigants (such as foreign ambassadors) or involving certain kinds of law (such as the application of federal statutes). The federal judicial power “extends to all cases, in law and equity” of a specified type and to certain designated “controversies.” In order to get in the courthouse door and raise a constitutional question for the judges to answer, a party must first meet the case-or-controversy requirement and demonstrate that they are involved in a dispute to which the federal judicial power extends. This constitutional requirement itself imposes limits on what types of disputes Congress can authorize the federal courts to hear and judges can assert authority to resolve. As with other areas of constitutional law, judicial doctrine has developed to widen or narrow the scope of the case-or-controversy requirement.

Judicial review can also come in either weak or strong forms. 5 A weak version of judicial review would allow a constitutional court to interpret the constitution and give advice to government officials on what its requirements might be, but would not allow judges to give legal effect to such interpretations. By implication, the constitution would be a political guide, not a legal rule. Some state supreme courts in the United States are authorized to give advisory opinions, usually upon the request of the governor. Advisory opinions provide the view of the judges on a given constitutional question, but they do not direct judges on how to decide cases that come before them and do not bind government officials. The United States is characterized by a strong form of judicial review. Judges are empowered not only to interpret the Constitution and publicly state their views on what the Constitution requires: they are also empowered to declare legislation that is contrary to those interpretations to be legally null and void and unenforceable in court. Judges exercising a strong form of judicial review can trump legislatures; they need not limit themselves to the role of expert advisors.

Congress has altered the practical effect of the case-or-controversy requirement for the U.S. Supreme Court. The Constitution limits the Court’s jurisdiction to actual cases and controversies, but in recent decades Congress has contributed to expanding the reach of the Court, facilitating judicial hearings for disputes that might not have been recognized as actual cases in the nineteenth century. Congress routinely fast-tracks to the Supreme Court constitutional challenges to statutes before they are implemented, and it has authorized the federal courts to issue declaratory judgments as a remedy that likewise opens the door to constitutional suits before the actual application of a statute. Over time Congress has gradually increased the range of cases that can be brought into the federal courts, and significantly it has given the U.S. Supreme Court largely discretionary control over its own docket. The Court now hears relatively few mandatory appeals, and instead fills its caseload by voluntarily granting writs of certiorari to select cases from a large pool of applications. The rise of the discretionary docket has helped transform the work of the Court, reducing its role as an appellate court for ordinary legal disputes and focusing its attention on constitutional questions. At the same time, the discretionary docket allows the Court to silently avoid ruling on disputes that might cause political difficulties for the justices. Some have explicitly urged the Court to exercise “the passive virtues” by prudently refusing to hear cases that might unnecessarily compromise the democratic process. 6

II. Is Judicial Review Necessary to Constitutionalism?

At the turn of the twentieth century, the power of judicial review was widely seen as a tool of political conservatives. Property rights and corporations were understood to have received the lion’s share of the benefits of judicial review. Judges were thought to be conservative by inclination, legal reasoning was unavoidably backward-looking, and constitutional rights served to preserve the status quo. Many on the political left preferred to severely restrict judicial review, if not dispose of the power entirely.

At least in the United States, the debate over whether judicial review was a necessary feature of constitutional government appeared to be over by the late 1940s. In the first decades of the twentieth century, the Progressives were harsh critics of the power of judicial review and offered a variety of proposals to pare it back. When the New Dealers took power in the 1930s, they inherited many of the Progressive sensibilities. But when they found themselves in a struggle with the Supreme Court, they did not propose to restrict judicial review. Instead they pursued a strategy of capturing the courts and turning the power of judicial review to their advantage. Franklin Roosevelt did not call on the Court to abandon judicial review; he called for a “reinvigorated, liberal-minded Judiciary.” Attorney General, and eventual Supreme Court Justice, Robert Jackson explained, “What we demanded for our generation was the right consciously to influence the evolutionary process of constitutional law, as other generations have done.” 7 Advisors to President Roosevelt, including Edward Corwin, 8 could see how the power of judicial review could be turned to the advantage of the issues and interests on the Left. In the aftermath of European fascism, many scholars and lawyers found a new respect for the idea of rights and a judicial brake on political leaders. In trying to reconstruct a commitment to constitutionalism in the aftermath of the war, the historian Charles McIlwain 9 contended that modern constitutional governments were “by definition limited government. … [with limits that are] fundamental not merely because they are basic, but because they are also unalterable by ordinary legal processes.” The concept of constitutionalism has come to mean “legal limitation on government.” The Warren Court helped turn political liberals into advocates of judicial activism in the 1950s and 1960s, and democracies abroad moved closer to the American model by adopting their own version of constitutional review.

The most notable holdout from this growing global consensus was Great Britain and the Commonwealth nations. The American revolutionaries had abandoned the tradition of an unwritten, customary constitution in favor of a system of written constitutions. The emerging Westminster model of democracy in England and its holdings emphasized parliamentary sovereignty and electoral accountability, and rejected the idea of legal limitations on government power. In the mid-twentieth century, countries such as England, Australia, and Canada cleaved to the Westminster model even as other advanced democracies abandoned parliamentary supremacy. That model has come under pressure in recent decades, as both international forces such as the emergence of the European Union and domestic forces such as the separatist movements among some French Canadians have pushed those countries to adopt more politically entrenched and legally binding bills of rights, suggesting the possibility of a new “Commonwealth model” of judicial review. 10

At the turn of the twenty-first century, the connection between constitutionalism and judicial review seemed to be back on the scholarly agenda. In Westminster countries, the question of whether judicial review was an essential feature of a modern constitutional state had real political salience. Advocates of “political constitutionalism” have pushed back against the momentum toward greater judicial review. Richard Bellamy 11 has popularized the term. Against “legal constitutionalists,” who take constitutionalism to be committed to the existence of a fundamental law that is “entrenched against legislative change” and that is subject to judicial interpretation and implementation, Bellamy advocates understanding constitutions as “a fundamental structure for reaching collective decisions about social arrangements in a democratic way” (1, 4). Rather than understanding constitutions as providing a set of trump cards to be played by judges against political majorities, constitutions should be understood as mechanisms for facilitating democratic decision-making about social order and public policy.

A critical driving force of such arguments is the perspective on politics advocated by Jeremy Waldron. 12 Whereas many constitutional theorists such as Ronald Dworkin 13 have urged judges to find the right answers to hard questions, Waldron has questioned whether there are such answers to be found, and whether judges are any better positioned to reach them than anyone else. For Dworkin, constitutional law is the realization of the ideal that “moral rights which individuals possess against the majority” could justify judicial “interference with democratic practice.” 14 For Waldron, an appreciation for the moral rights of the individual does not itself justify empowering judges to countermand democratic majorities in the name of those rights. We find ourselves, unavoidably, in what Waldron has called the “circumstances of politics.” 15 Politics is only necessary to the extent that we are committed to a “common course of action” but face “disagreement about what the concerted course of action should be.” 16

In such circumstances, we need a process for making collective decisions in the face of disagreement. As Waldron emphasizes, we confront disagreements not only about the kind of issues that Dworkin characterizes as mere “policy,” notably how to allocate common resources: we also disagree about the very things that Dworkin wants to elevate above politics, matters of “principle,” notably identifying and vindicating what rights individuals are thought to have. As a consequence, we need a mechanism for resolving such disagreements over rights. Judicial review might be the most appropriate mechanism, but Waldron contends that we ought to favor legislatures for this task, just as we favor legislatures for making decisions about other controversial matters of public interest. Instead of proceeding on the assumption that the most important question in constitutional theory is identifying what the correct answer to contested questions of rights might be, political constitutionalism contends that the most important question is determining how a polity should go about answering such contested questions.

These advocates of political constitutionalism have reframed the discussion about judicial review in constitutional theory. The long-standing debate in constitutional scholarship was one of rights versus democracy. This developing literature has instead emphasized the ways in which rights and democracy go together and the possibility of democratic deliberation about rights. At the very least, scholars such as Waldron have unsettled the assumption that courts are the natural arbiters of rights claims and have forced discussion about the comparative advantages of various alternative schemes for resolving such questions. For Waldron, the appeal of a legislature is primarily normative; ordinary citizens are denigrated and disrespected when they are not allowed to participate in the decisions about important matters of morality and justice. Others might well want to interrogate the empirical assumptions behind theories of judicial supremacy or political constitutionalism.

The reconsideration of the importance of judicial review in a constitutional system has also been motivated by developments in the United States. As the Rehnquist Court was attracting attention for the increased exercise of judicial review from a conservative direction, 17 constitutional scholars began to question the value of judicial review in a way that had fallen out of favor since the advent of the Warren Court. Mark Tushnet, 18 a former law clerk for Justice Thurgood Marshall, took the lead with a call to “take the Constitution away from the courts.” His attack on the Court’s presumption of judicial supremacy and proposal for the development of a “populist constitutional law” provided a radical challenge to the practice of judicial review that was grounded more in the politics of American constitutional law than in high political theory. Inspired by the growing literature on extrajudicial constitutional interpretation, Tushnet contended that constitutional theory needed to do more to take into account the constitutional practice that goes on outside the courts. But for Tushnet, doing so required displacing “this country’s strong tradition of judicial review.” 19 Grounded in the context of American constitutional law, Tushnet argued for distinguishing between a thick and thin Constitution. The thick Constitution consists of detailed textual provisions that are primarily of concern to elite legal actors and constitute most of the substance of judicial review. On the whole, however, judicial review may just “amount to noise around zero,” effectively replicating the results that the political system itself would tend to produce. 20 (From a somewhat different perspective, Sanford Levinson 21 has argued that these “hardwired” features of the Constitution may be the most important, in part because they generally do not rely on judicial intervention to make them effective.) Ultimately, the thin Constitution may be of great significance, and is the primary focus of populist constitutional law. The thin Constitution consists of the principles that are central to American civic discourse, and also incorporates most of the contested values and rights that occupy the attention of politicians, activists, and citizens.

Tushnet’s idea of a populist constitutional law pointed to a burgeoning literature on the Constitution outside of the courts. That literature has many components, and is often concerned with the ways in which political actors supplement judicially enforced constitutional law with their own constitutional ideas and practices. 22 One point of connection between that literature on extrajudicial constitutional interpretation and the exercise of judicial review is the possibility that constitutional thinking outside the courts affects constitutional deliberation inside the courts. Political actors, perhaps authorized by extraordinary popular deliberation, may engage in a form of constitutional lawmaking, laying down new constitutional rules for the courts to enforce. 23 Alternatively, the transmission of constitutional ideas from politics to law may be more routine and fluid. Political actors and judges may be engaged in a common project of constitutional interpretation, with ideas and values regnant in the political realm likely to gain influence in the judicial realm as well. 24

Larry Kramer’s 25 notion of “popular constitutionalism” most closely resembles the sort of theories of political constitutionalism developed by scholars such as Richard Bellamy. Indeed, Kramer borrows directly from traditional British conceptions of constitutional practice in order to suggest that features of the “customary constitution” endured in the United States long after the American Revolution. American constitutionalism has not, according to Kramer, historically been a constitutional system characterized by judicial supremacy and the proliferation of constitutional law. Rather, the bulk of the American constitutional experience is one in which the courts operate in the background. The characteristic mode of American constitutionalism is one in which “ordinary citizens [are assigned] a central and pivotal role in implementing their Constitution” and exercise “final interpretive authority” over constitutional meaning. 26 Popular constitutionalism is one in which judicial review is subordinate, not superior, to politics.

III. How Should Judicial Review be Exercised?

The normative debate over judicial supremacy and the very existence of judicial review harkens back to arguments that absorbed scholars and activists at the turn of the twentieth century. The debate that dominated constitutional theory in the latter half of the twentieth century assumed the continued existence and prominence of judicial review. That debate focused on how judicial review might be justified and how the courts should use such a power to delimit the sphere of government authority. Although less intense now than it was at one point, that debate continues to shape how judicial review and constitutional law is conceptualized.

The normative debate of recent decades was decisively framed at midcentury by scholars who were deeply influenced by the New Deal experience and Progressive critiques of courts. For them, the overriding concern with the exercise of the power of judicial review was the apparent conflict between democracy (represented by elected legislatures) and individual rights (represented by courts). For many traditional Progressives, this conflict implied that courts should not exercise the power of judicial review. 27 For other liberals, the challenge was how best to reconcile judicial review with democracy. If the judiciary was a “countermajoritarian” or antidemocratic institution, then the normative dilemma was how such an institution could be justified and when it should be deployed. 28

There are four general approaches to trying to reconcile the exercise of judicial review with a commitment to democracy. 29 All four have implications for how aggressively the courts ought to exercise the power of judicial review and for what the substance of constitutional law ought to be in order for it be justifiable. Even if the continued existence of judicial review is taken for granted as a matter of political practice, such theories are designed to provide guidance on how the power ought to be exercised such that it can be persuasively grounded in a set of legitimating commitments. Obviously, all four approaches have been subjected to searching criticism, and none has proven fully satisfying to those seeking to provide a firm normative grounding for the exercise of judicial review.

One approach to solving this dilemma is to find a democratic authorization for the exercise of judicial review generally and the substance of constitutional law specifically. This is a very traditional approach, and it was highlighted in Chief Justice John Marshall’s early defense of the power of judicial review in Marbury v. Madison (1803). In the recent literature, this justification for judicial review has been particularly emphasized by originalist theories. Originalism contends that judges should adhere to the original meaning of the constitutional text when elaborating constitutional law. A variety of rationales for this approach to constitutional interpretation have been put forward, but the significance of ideas of popular sovereignty has been particularly emphasized in recent versions of the theory. 30 From that perspective, judicial review is justified as a mechanism for enforcing the constitutional rules put in place by those democratically authorized to establish those rules. In a related vein, Bruce Ackerman 31 has argued for a theory of “dualist democracy,” in which normal politics operates at a lower level of democratic authority than the higher politics that lays down the fundamental law.

A second approach to reconciling democracy and judicial review draws on Progressive-Era thinking and limits the exercise of judicial review to a small number of exceptional cases. James Bradley Thayer 32 provided the classic articulation of this view. Facing a judiciary that was increasingly intervening in some of the most hotly contested social issues of the day, Thayer re-emphasized what he took to be a traditional view that judges should defer whenever possible to the constitutional judgments of elected officials. This cashed out in the clear-mistake rule, holding that judges should only overturn a law when the legislature has made a clear constitutional error. Modern conservatives such as Robert Bork 33 and Lino Graglia 34 have integrated the clear-mistake rule into their own theories of judicial review. With such a restrained judiciary, Graglia 35 has asserted, occasions for invalidating statutes “would be so few as to make the power a matter of little more than academic interest.” Judicial review guided by the clear-mistake rule could coexist with democratic ideals precisely because the courts would rarely obstruct the will of democratic majorities.

A third approach to accommodating judicial review within a democratic system is by directing courts to bolster the workings of the democratic system. The countermajoritarian objection to judicial review focuses on the possibility of courts reversing the policy decisions of elected officials. Courts might, however, exercise judicial review in such a fashion that they eschew blocking substantive policy outcomes and instead focus their attention on monitoring the democratic process. A process-based approach to the exercise of judicial review can be traced back to judges such as Justice Oliver Wendell Holmes Jr. and Justice Harlan Stone. Holmes eventually departed from his normal skepticism about judicial review when it came to cases involving political speech. A central tenet of Holmes’s political philosophy was that democratic majorities should be able to do what they want, no matter how erroneous their preferences might be. But that still required majorities to be able to formulate their wants and to successfully transmit their preferences to government officials and translate them into public policy. Securing the “free trade in ideas” provided the best hope that majorities would find their way toward pursuing the social good ( Abrams v. United States 1919). John Hart Ely 36 provided the most influential general theory of this type. For Ely, judicial review should be used to reinforce the process of political representation but not to block the outputs of the democratic system. The Court could operate with rather than against democracy so long as it served as a neutral guardian of the democratic process itself. 37

A fourth approach emphasizes the priority of substantive values over democratic processes. Judicial review, in this approach, should not be reconciled with democracy by finding ways of minimizing the tensions between democratic procedures or democratic commitments and judicial invalidations of statutes. The Progressives and New Dealers who worried about the democratic legitimacy of judicial review simply had misplaced priorities. Rather, the substantive values that the courts pursue should be recognized as of greater importance than democratic values, and the antidemocratic quality of judicial review should be celebrated rather than excused. Such arguments can likewise be found at the turn of the twentieth century, with conservatives countering Populist complaints that judicial review is antidemocratic by contending that some antidemocratic institution was essential to the survival of a free society. 38 Since the Warren Court, such arguments have been most aggressively advanced by political liberals. In Ronald Dworkin’s 39 influential formulation, rights should be understood as “trumps” that cannot be overridden by the policy goals of legislative or popular majorities. Politically insulated judges armed with the power of judicial review are essential to guaranteeing that the central moral value of individual rights is adequately respected. The alternative might be to give greater range to democratic impulses, but it would not create a more normatively attractive political system.

Although the possibility is muted at the national level where judges are appointed for life terms, at the state level judges are often placed or retained on the bench through an electoral process. This at least opens the possibility that when opposing legislatures judges can appeal to their own democratic credentials. Many early judicial reformers hoped that elected judges would be more independent from the political branches and thus more willing and able to provide a check on legislative abuses. 40 Modern state courts may also pose a “majoritarian difficulty,” empowered to engage in greater activism by the legitimating quality of electoral accountability while raising questions about how such complex democratic systems should operate. 41

IV. How is Judicial Review Exercised?

Lawyers explain the exercise of judicial review in terms of legal reasoning. From that perspective, the judicial elaboration and application of constitutional law proceeds by reference to the intersection of the sources of constitutional law and the problems of governance that give rise to constitutional questions to be answered and constitutional disputes to be resolved. Edward Levi 42 noted that the “pretense” of legal reasoning “is that the law is a system of known rules applied by a judge,” but legal reasoning does not explain why cases are decided the way that they are. Legal outcomes are not mechanically produced by legal materials through the process of legal reasoning. Rather, legal reasoning “describes what judges do to justify their decision when they cannot demonstrate or prove that they reached the ‘right answer.’” 43 Legal reasoning justifies legal action in terms of recognized authorities. It explains the legal validity of a judicial decision, if not necessarily the historical causes of a decision. 44 The types of arguments that can be used to explain the legal validity of decisions are ultimately a constrained set, and the moves that can be made within these modalities of constitutional argumentation may be more or less persuasive. Judges rationalize what they do through the use of familiar types of arguments appealing to conventionally accepted sources of legal authority, from the constitutional text to judicial precedent to historical practices. 45

Political scientists have generally been less interested in how judges justify and explain the legal validity of their decisions than with what causes or affects their decision-making. From that perspective, the starting point is the assumption that the Supreme Court “always has been and … always will be a political institution.” 46 The Court is a political institution not only in that its decisions have important policy implications and the Court exists within a highly political environment, but also in that judges, when viewed “without halos,” are understood to be political actors with distinct sets of values and preferences. In that sense, justices differ from legislators primarily in their felt obligation to ground their decisions in fundamental political principles rather than the fluctuating concerns of practical politics, to “be of politics without being in politics.” 47

The central drivers of constitutional decisions in the Supreme Court (where most of the cases are “hard” in the sense that the legal questions are novel and the accepted legal answers are unclear) are the political viewpoints of the justices. To the extent that justices disagree about how a case should be decided, their disagreements tend to reflect systematic differences of opinion on what the constitutional law should be. 48 If the justices “choose among controversial alternatives of public policy” when rendering their decisions and developing constitutional law, then they are necessarily thrown back onto “their own predispositions or those of influential clienteles and constituents. 49 In the United States, such differences are often, but not exclusively, organized by political parties and can be arrayed along conventional ideological lines.

The actual exercise of judicial review in the United States is but a subset of judicial decision-making generally, and constitutional law is in principle made by the justices in a manner that is comparable to how they make law in other areas. It is thus worth framing our understanding of how judicial review is exercised within a set of more general approaches to thinking about judicial politics, while noting some particularities of the judicial review context.

The most venerable approach to judicial politics grows out of the observations by behavioralist political scientists such as C. Herman Pritchett and Robert Dahl that justices make choices among competing alternative legal rules based on their own predispositions about public policy and political values. Justices vote on how to resolve constitutional disputes based on their own “ideological attitudes. 50 Especially within the unique circumstances of the Supreme Court and constitutional law, the justices face few constraints on (or alternatives to) their ability to decide cases based on their own political preferences. The confluence of substantial institutional autonomy, highly salient issues, and indeterminate legal materials leaves the justices free to seek to realize their own policy goals through the resolution of the cases that come before them. Facing few constraints on and enjoying few guides to their decision-making, Justice Antonin Scalia and Justice Ruth Bader Ginsburg cast a pattern of votes that can be understood in fairly conventional ideological terms. From the attitudinal perspective, such meta-principles as notions of judicial restraint play little role in constitutional decision-making. 51 In rendering judgments, the justices are focused squarely on the substantive issues at stake in a case. Thus, individual justices “vote to uphold either conservative laws or liberal laws, but never both.” 52 Similarly, liberal justices are disproportionately more likely than conservative justices to favor constitutional claims of violations of individual liberties or civil rights. 53

But the plausibility of the attitudinal model depends on how insulated the justices really are from pressures that might lead them to depart from voting to maximize their personal policy preferences. There may be circumstances in which justices behave more strategically to operate around constraints than sincerely to express their basic policy attitudes. Even as Glendon Schubert was first developing the modern attitudinal model in the 1960s, Walter Murphy 54 was seeking “to understand how , under the limitations which the American legal and political systems impose, a Justice can legitimately act in order to further his policy objectives” (emphasis added). A focus on judicial strategies takes up the problem of limited judicial capacities and the resourcefulness with which judges try to make the most of those capacities. Murphy and others have pointed to the various possible obstacles that justices confront in attempting to secure their policy goals, from the need to build coalitions with other justices to the importance of implementing actors within the judicial and executive bureaucracies to the possible threat of political retaliation over unpopular decisions. 55 The evidence that such constraints dramatically affect how the justices exercise the power of judicial review is mixed. The circumstances in which other government officials can successfully sanction or refuse to comply with a constitutional ruling are limited. 56 But lower-profile state courts may be less insulated from threat than the U.S. Supreme Court currently is, 57 and the justices may be sufficiently risk averse that they hedge in the face of political opposition. 58

We may also wish to know more about the larger political system within which the courts operate. Robert Dahl 59 believed that the individual justices were likely to express their own particular policy predispositions in judicial review cases, but the interesting question for him was how such policy-maximizing justices were situated within a political environment. For Dahl, the combination of a politicized appointments process and partisan divisions over constitutional issues meant that the Court as an institution could be counted on to reliably rubber-stamp the policy decisions of elected officials, except for rare and fleeting moments when the composition of the Court lagged behind rapidly changing electoral fortunes of legislative coalitions. The Court was congenitally ill-suited to “play[ing] the role of Galahad.” 60 The sincere expression of judicial policy attitudes would mostly be cashed out with the justices giving their blessings to legislative actions.

A neo-Dahlian literature has called into question his bottom-line conclusion (courts will rarely invalidate statutes), but has built on his basic framework in order to better understand when and how the Court is likely to exercise the power of judicial review. The crucial step was taken by Mark Graber, 61 who emphasized that political parties were fractious coalitions, not monoliths, and their hold over the levers of power was often tenuous. The implications of the partnership between the courts and political leaders were, as a result, quite different than those that Dahl highlighted. Rather than simply wanting to remove the potential roadblock of a judicial veto, politicians may seek to empower the courts and encourage judicial review in order to better advance their overall objectives. 62 Dahl’s caution that courts might be less counter-majoritarian in practice than some hoped (or feared) gains some new weight, but not because the courts would be passive bystanders to political events. This effort to think about interconnected political systems also builds bridges to related literatures concerned more with the substance of constitutional law and the interconnectedness between political movements and the content of judicial values, 63 the political foundations of judicial review and constitutional rights, 64 and the broader new institutionalist perspective on law and courts. 65

V. Does Judicial Review Matter?

The empirical literature considered in the last section was primarily concerned with how the courts have exercised the power of judicial review. A different empirical literature has been less concerned with judicial decision-making and more concerned with the consequences of judicial action. It can be easy to assume that the exercise of the power of judicial review is necessarily significant and consequential, especially in high-profile cases. A well-established social science literature suggests that such an assumption cannot be easily made.

At the same time that Dahl raised questions about whether the Court would be inclined to exercise the power of judicial review to obstruct other government officials, scholars began to raise questions about whether other government officials would tend to obstruct the implementation of judicial decisions. Such difficulties were certainly on the mind of Walter Murphy 66 when he explored the limited capacity of the justices to “manage the judicial bureaucracy” and to overcome active and passive political checks on judicial power. If the justices were to realize, and not merely to express, their policy objectives, they would need to win the cooperation of others.

The newly emergent activism of the Supreme Court after the New Deal interlude provided plenty of fodder for examining how effective the Court could be. In pioneering studies, Gordon Patric 67 and Frank Sorauf 68 launched the consideration of the impact of judicial rulings. It is perhaps no accident that both of those early studies involved Supreme Court decisions on religion in public schools. The resistance of local communities and individual government employees to the Court’s effort to rid the public schools of organized religion was evident. And yet, the practical opposition to those rulings did not take the form of massive resistance and street riots. The religion cases were exemplary high-salience, low-visibility decisions, and the fiercely committed found plenty of ways to evade judicial edicts while keeping out of the limelight. A Court that was out-of-step with public sentiment and the views of other public officials could find the implementation of its decisions difficult. In school districts from Virginia to New York to Chicago, government officials found the Court’s ruling that schoolhouse religious instruction was unconstitutional to be barely even a stumbling block to the continued operation of their own school programs. 69 School prayer continued unabated in many classrooms well after the Court proclaimed such practices to be unconstitutional. 70 Constitutional decisions attempting to regulate police conduct have often encountered similar difficulties of attempting to control hostile actors who operated in a nontransparent environment. 71

The Warren Court’s announcement that racial segregation in public schools violated the Constitution made the problem of implementation particularly visible. In that case, Southern activists and politicians launched a frontal assault on the Court, publicly announcing a campaign of massive resistance to a ruling that they contended was wrongly decided. J.W. Peltason 72 provided the classic account of individual federal judges left largely to their own devices to deal with political intransigence, evasion, and foot-dragging in desegregating schools. Even on high-profile issues, public scrutiny of how decisions are implemented in practice may be limited. Newspaper headlines may declare a decisive defeat for a policy after the announcement of a Court decision, but “while they slept” administrators and interest groups may sap the significance of the decision and claw back some form of victory out of the apparent legal defeat. 73 As Jon Gould 74 concluded in his examination of campus speech codes “the ultimate power of constitutional decisions and norms is found not in court rulings but in the response, acceptance, and interpretation of those holdings in civil society.”

The study of the impact of judicial constitutional decisions has attracted renewed attention in recent years. Gerald Rosenberg 75 subtly, but significantly, changed the question by focusing less on the obstacles to implementation and compliance and more on the social ramifications of landmark decisions. There are many ways to think about the practical implications of constitutional pronouncements, from how judicial opinions might shape public opinion 76 to how the judicial veto might affect legislative behavior. 77 Rosenberg directed our attention to the bottom line. Did the desegregation decisions result in more racially integrated classrooms? Did the abortion decisions result in more legalized abortions? Given the limited policymaking tools available to the Supreme Court, Rosenberg contended that the marginal impact of judicial review on the process of social change was limited. The details of Rosenberg’s argument have been heatedly challenged, 78 but the broader suggestion that the Court is most effective when it is swimming with the tide rather than against it has gained traction. 79

VI. Conclusion

The practice of constitutional review is no longer limited to the United States, but the American system of judicial review remains unusual from a global perspective. The modern institution would no doubt seem unusual from the perspective of those who framed the American form of government, and even to those who advocated for a recognition of the judicial power to declare statutes unconstitutional. The courts are now routinely drawn into important policy debates, and the judiciary is understood to have a meaningful veto power over the legislative proposals. Like the presidential veto power, the threat of judicial nullification has been routinized and must be accounted for by those advancing innovative public policies.

Scholars have puzzled over judicial review ever since the practice attained its modern prominence, and the scholarly agenda has often operated in tandem with the political agenda. When activists on the Left challenged the legitimacy of judicial review at the turn of the twentieth century, scholarship quickly emerged to provide ammunition to both sides in the debate (and perhaps to shed some light on the truth of the matter). When the Warren Court revitalized the power of judicial review on behalf of a liberal agenda, scholars puzzled over the legitimacy and consequences of the Court’s activism. As the Court took a more conservative turn at the end of the twentieth century, scholars investigated alternatives to judicial review and how responsive the Court might be to political pressures. The result has been a wide-ranging literature on various phases of the judicial practice.

Nonetheless, there remains work to be done. No doubt new developments in the legal and political spheres will spur scholars to ask new questions about the exercise of judicial review, but the scholarly agenda need not depend on external events. There is still relatively uncharted territory for the study of judicial review. Both state courts and foreign tribunals actively exercise a judicial veto, and both remain understudied compared to the U.S. Supreme Court. Similarly, how lower federal courts handle constitutional controversies has been almost wholly ignored. Although the problem of compliance, implementation, and impact has received greater attention in recent years, there is still a frustrating dearth of theory to guide empirical examinations and to organize existing findings. There is a growing interest in the relationship between the courts and other political actors in the development of constitutional law, but more remains to be done. There are many lessons for the particular practice of judicial review within the broader literature on judicial politics and judicial decision-making, but there has been relatively little attention to the particular empirics associated with constitutional cases, which has an unfortunate tendency to limit our descriptive understanding of how the Court exercises that particularly important power and to hamper efforts to bridge between studies on judicial decision-making and studies on the theory and practice of judicial review. The normative literature on how to justify and deploy the power of judicial review has been at a bit of a standstill in recent years, and there is room for a renewed consideration of how to frame and categorize the normative problems associated with the exercise of judicial review, and how best to manage those difficulties.

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Gould, J and Mastrofski, S , ‘ Suspect Searches: Assessing Police Behavior under the U.S. Constitution ’ ( 2004 ) 3 Criminology and Public Policy 315–362.

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Graber, M , ‘ The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary ’ ( 1993 ) 7 Studies in American Political Development 35–73.

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Some state constitutions do now take into account the practice of judicial review. For example, Nevada’s constitution includes a severability clause indicating that if any statutory provision is “held to be invalid or unconstitutional by a court of competent jurisdiction,” the larger statute will remain in place and North Dakota’s constitution requires a majority of at least four justices to “declare a legislative enactment unconstitutional.” In the federal context, the supremacy clause of the U.S. Constitution at least suggests a practice such as judicial review.

Chief Justice John Marshall provided an especially influential explanation of the power of judicial review in 1803, but other judges had exercised such a power before him and other commentators had described and justified it. Whittington, K and Rinderle, A , ‘Making a Mountain out of a Molehill: Marbury and the Construction of the Constitutional Canon’ (2011) 39 Hastings Constitutional Law Quarterly 823–860 ; Gerber, S, A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787 (2011) ; Treanor, W , ‘Judicial Review before “ Marbury ,’” (2005) 58 Stanford Law Review 455–562 .

Just a few years earlier, Corwin (1906) was reliant on such awkward formulations as “the power of the Supreme Court of the United States to supervise Congressional legislation” and “the right to declare an act of Congress of no effect because transgressing constitutional limits.”

Stone Sweet, A, Governing with Judges: Constitutional Politics in Europe (2000) .

Tushnet, M, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (2009) .

Bickel, A, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962) .

Whittington, K, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (2007) 266 ).

Corwin, E , ‘The Establishment of Judicial Review’ (1910) 9 Michigan Law Review 102–125 (1941) .

McIlwain, C, Constitutionalism: Ancient and Modern (1947) 21 .

Gardbaum, S, The New Commonwealth Model of Constitutionalism: Theory and Practice (2013) ; Erdos, D, Delegating Rights Protection: The Rise of Bill of Rights in the Westminster World (2010) .

Bellamy, R, Political Constitutionalism: A Republican Defense of the Constitutionality of Democracy (2007) .

Waldron, J, Law and Disagreement (1999) .

Dworkin, R, Taking Rights Seriously (rev edn, 1978) .

Keck, T, The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism (2004) .

Tushnet, M, Taking the Constitution away from the Courts (1999) .

Levinson, S, Framed: America’s 51 Constitutions and the Crisis of Governance (2012) .

Whittington, K, Constitutional Construction: Divided Powers and Constitutional Meaning (1999) ; Whittington , ‘The Status of Unwritten Constitutional Conventions in the United States’ (2013) 2013 University of Illinois Law Review 1847–1870 .

Ackerman, B, We the People: Foundations (1993) .

Friedman, B, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2010) ; Balkin, J, Living Originalism (2011) ; Siegel, R , ‘Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA’ (2006) 94 California Law Review 1323–1419 ; Fisher, L, Constitutional Dialogues: Interpretation as Political Process (1988) .

Kramer, L, The People Themselves: Popular Constitutionalism and Judicial Review (2004) .

Hand, L, The Bill of Rights (1958) .

Bickel, n 6 above.

Note that all four approaches are external to the U.S. Constitution itself, in that none attempts to ground the authority for the exercise of judicial review solely in an interpretation of the terms of a state or federal constitution. There are a variety of efforts at constitutional interpretation that would provide legal authority for the power of judicial review, but such efforts cannot by their nature deal with extrinsic concerns about why the constitution itself should be taken as authoritative in this regard and the institution should be taken as normatively attractive and they suffer from the interpretive indeterminacies that are the product of textual silence on this issue.

Whittington, K, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (1999) .

Ackerman, n 23 above.

Thayer, J , ‘The Origin and Scope of the American Doctrine of Constitutional Law’ (1893) 7 Harvard Law Review 129–156 .

Bork, R, The Tempting of America: The Political Seduction of the Law (1990) .

Graglia, L , ‘Judicial Review: Wrong in Principle, a Disaster in Practice’ (2002) 21 Mississippi College Law Review 243–252 .

John Hart Ely, Democracy and Distrust (1980) .

More recent variations on this approach have developed more robust theories of democracy that would authorize judges to pursue substantive commitments that might be implicit within democratic governance or embedded within democratic values. Democracy is about outcomes, and not just process. By advancing democratic outcomes, non-democratic institutions can contribute to enhancing democracy. Spector (2003) ; Eisgruber (2007) .

Field, S , ‘The Centenary of the Supreme Court of the United States’ (1890) 24 American Law Review 351–368 .

Dworkin, R, A Matter of Principle (1985) .

Shugerman, J, The People’s Courts: Pursuing Judicial Independence in America (2012) .

Croley, S , ‘The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law’ (1995) 62 University of Chicago Law Review 689–794 .

Levi, E, An Introduction to Legal Reasoning (1949) 1 .

Carter, L and Burke, T , Reason in Law (8 edn, 2009) 9 .

Bobbitt, P, Constitutional Interpretation (1991) .

Pritchett, C H, The Roosevelt Court: A Study in Judicial Politics and Values, 1937-1947 (1969) 16 .

Such disagreements may exist across time and not simply among the justices who happen to be sitting together at the moment. As Pritchett (1969, 31) observed of the Roosevelt Court, “in many areas where the Court was formerly divided it has now reached almost unprecedented unanimity.” The newfound unanimity was built on the back of political debate and mobilization, squeezing some views off the bench and narrowing the scope of active conflict on the bench.

Dahl, R , ‘Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker’ (1957) 6 Journal of Public Law 281, 280 .

Segal, J and Spaeth, H, The Supreme Court and the Attitudinal Model Revisited (2002) .

Howard, R and Segal, J , ‘A Preference for Deference? The Supreme Court and Judicial Review’ (2004) 57 Political Research Quarterly 131–143 .

Lindquist, S , and Solberg, R , ‘Judicial Review by the Burger and Rehnquist Courts: Explaining Justices’ Responses to Constitutional Challenges’ (2007) 60 Political Research Quarterly 71–80 .

Murphy, W, Elements of Judicial Strategy (1964) vii .

Epstein, L and Knight, J, The Choices Justices Make (1998) .

Vanberg, G ‘Legislative-Judicial Relations: A Game-Theoretic Approach to Constitutional Review’ (2001) 45 American Journal of Political Science 346–361 ; Glick, D , ‘Conditional Strategic Retreat: The Court’s Concession in the 1935 Gold Clause Cases’ (2009) 71 Journal of Politics 800–816 ; Whittington, K , ‘Legislative Sanctions and the Strategic Environment of Judicial Review’ (2003) 1 International Journal of Constitutional Law 446–474 .

Langer, L, Judicial Review in State Supreme Courts: A Comparative Study (2002) .

Clark, T, The Limits of Judicial Independence (2011) ; Harvey, A, A Mere Machine: The Supreme Court, Congress, and American Democracy (2013) .

Dahl, n 49 above.

Graber, M , ‘The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary’ (1993) 7 Studies in American Political Development 35–73 .

Gillman, H ‘Party Politics and Constitutional Change: The Political Origins of Liberal Judicial Activism’ in Kersch, K and Kahn, R (eds), The Supreme Court and American Political Development (2006) ; Whittington, n 7 above.

Kersch, K, Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law (2004) ; Clayton, C and Pickerill, J M , ‘The Politics of Criminal Justice: How the New Right Regime Shaped the Rehnquist Court’s Criminal Justice Jurisprudence’ (2006) 94 Georgetown Law Journal 1385–1426 ; Ackernman, n 23 above.

Hirschl, R, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (2004) .

Smith, R , ‘Political Jurisprudence, the “New Institutionalism,” and the Future of Public Law’ (1988) 82 American Political Science Review 89–108 .

Murphy, n 54 above.

Patric, G , ‘The Impact of a Supreme Court Decision: Aftermath of the McCollum Case’ (1957) 6 Journal of Public Law 455–464 .

Sorauf, F , ‘ Zorach v. Clauson : The Impact of a Supreme Court Decision’ (1959) 53 American Political Science Review 777–791 .

Patric, n 67 above

Dolbeare, K and Hammond, P, The School Prayer Decisions from Court Policy to Local Practice (1971) .

Medalie, R , Zeitz, L and Alexander, P , ‘Custodial Police Interrogation in Our Nation’s Capital: The Attempt to Implement Miranda ’ (1968) 66 Michigan Law Review 1347–1422 ; Gould, J and Mastrofski, S , ‘Suspect Searches: Assessing Police Behavior under the U.S. Constitution’ (2004) 3 Criminology and Public Policy 315–362 .

Peltason, J, 58 Lonely Men: Southern Federal Judges and School Desegregation (1971) .

Sweet, M, Merely Judgment: Ignoring, Evading, and Trumping the Supreme Court (2010) ; Silverstein, H, Girls on the Stand: How Courts Fail Pregnant Minors (2007) .

Gould, J, Speak No Evil: The Triumph of Hate Speech Regulation (2005) 152 .

Rosenberg, G, The Hollow Hope: Can Courts Bring about Social Change? (1991) .

Flemming, R , Bohte, J and Wood, B D , ‘One Voice among Many: The Supreme Court’s Influence on Attentiveness to Issues in the United States, 1947-92’ (1997) 41 American Journal of Political Science 1224–1250 .

Pickerill, J M, Constitutional Deliberation in Congress: The Impact of Judicial Review in a Separated System (2004) .

Hall, M, The Nature of Supreme Court Power (2013) .

Klarman, M, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (2006) .

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The Major Supreme Court Decisions in 2022

By Adam Liptak and Jason Kao Updated June 30, 2022

The leak in May of a draft of the decision overruling Roe v. Wade seemed to expose new fault lines at the Supreme Court in the first full term in which it has been dominated by a 6-to-3 conservative supermajority, including three justices appointed by President Donald J. Trump. The court’s public approval ratings have been dropping, and its new configuration has raised questions about whether it is out of step with public opinion.

According to a recent survey from researchers at Harvard, Stanford and the University of Texas, the public is closely divided on how the court should rule in several major cases. In many of them, though, respondents held starkly different views based on their partisan affiliations. Here is a look at the major cases this term.

In West Virginia v. Environmental Protection Agency , the court's ruling curtailed the E.P.A.'s ability to regulate the energy sector, limiting it to measures like emission controls at individual power plants. The implications of the ruling could extend well beyond environmental policy.

DECIDED JUNE 30

Sotomayor

Where the public stands

Question wording: Under federal law, the Environmental Protection Agency (E.P.A.) has the authority to set emissions standards using "the best system of emission reduction." Some people think this means that the E.P.A. can set emissions limits on individual power plants and can also more broadly regulate emissions across the entire energy sector. Other people think that the E.P.A. can set limits on individual power plants but cannot more broadly regulate emissions across the entire energy sector. What do you think? | Source: SCOTUSPoll

In Biden v. Texas , the court cleared the way for the Biden administration to end a Trump-era immigration program that forces asylum seekers arriving at the southwestern border to await approval in Mexico.

Question wording: The U.S. Department of Homeland Security required noncitizens trying to reside in the U.S. to wait in Mexico while immigration officials process their cases. The Biden administration issued an order ending this "Remain in Mexico" program. In response, several states sued, saying that the administration did not have adequate justification in ending the program. Some people think that the Biden administration should be able to end this program. Other people think that the Biden administration should not be able to do so. What do you think? | Source: SCOTUSPoll

In Oklahoma v. Castro-Huerta , after ruling that much of Oklahoma falls within Indian reservations, the court ruled that state authorities may prosecute non-Indians who commit crimes against Indians on those reservations.

DECIDED JUNE 29

Question wording: The defendant, a non-Native American, committed a crime against a Native American on Native American land. The State of Oklahoma would like to pursue criminal charges against the defendant. The defendant says that the state cannot prosecute him because the crime occurred on Native American land, and so only the federal government can prosecute him. Some people think that states cannot prosecute crimes that happen on Native American land, even if the perpetrator is non-Native American. Others think that states should be able to prosecute such cases. What do you think? | Source: SCOTUSPoll

In Kennedy v. Bremerton School District , the court ruled that a football coach at a public high school had a constitutional right to pray at the 50-yard line after his team’s games.

DECIDED JUNE 27

Question wording: The football coach at a public high school led prayers with players before and after games. The school district asked him to stop, and the coach refused. He was then suspended. Some people think the school district was right to suspend the coach because of the First Amendment’s separation of church and state. Other people do not think the district was right to do so because of the coach’s right to free exercise of religion. What do you think? | Source: SCOTUSPoll

In Dobbs v. Jackson Women’s Health Organization , the court ruled that a Mississippi law that bans most abortions after 15 weeks is constitutional and overturned the constitutional right to abortion established by Roe v. Wade in 1973.

DECIDED JUNE 24

Question wording: A new law in Mississippi bans nearly all abortions after 15 weeks of pregnancy. Some people think that this law is unconstitutional. Others think it is constitutional. What do you think? | Source: SCOTUSPoll

Question wording: Should the Supreme Court overrule Roe v. Wade, the 1973 decision that established a constitutional right to abortion and prohibited states from banning abortion before the fetus can survive outside the womb, at around 23 weeks of pregnancy? | Source: SCOTUSPoll

In New York State Rifle & Pistol Association v. Bruen , the court ruled that states with strict limits on carrying guns in public violate the Second Amendment.

DECIDED JUNE 23

Question wording: New York requires a person to show a need for self-protection in order to receive a license to carry a concealed firearm outside the home. Some people think that this law violates people’s Second Amendment rights. Others think it does not violate people’s Second Amendment rights. What do you think? | Source: SCOTUSPoll

In Carson v. Makin , the court ruled that a Maine program that excludes religious schools from a state tuition program is a violation of the free exercise of religion.

DECIDED JUNE 21

Question wording: The State of Maine pays private school tuition for students in rural areas that do not have public secondary schools. Maine prohibits students from using this public money to attend schools that are religious (or "sectarian"). Some people think that this is a violation of the First Amendment protections of the free exercise of religion. Other people think that this is a valid policy to maintain the separation between church and state. What do you think? | Source: SCOTUSPoll

In Shurtleff v. Boston , the court ruled that the City of Boston had violated the First Amendment when it refused to let a private group raise a Christian flag in front of its City Hall, although it had allowed many other organizations to use the flagpole to celebrate various causes.

DECIDED MAY 2

Question wording: Upon request, the City of Boston often flies flags of different organizations in front of its City Hall. The city refused to fly a religious organization’s flag bearing a Christian cross. Some people say that Boston’s refusal to fly a religious organization’s flag violated the organization’s First Amendment rights. Other people believe that it did not violate the organization’s First Amendment rights. What do you think? | Source: SCOTUSPoll

In Houston Community College System v. Wilson , the court ruled that elected bodies do not violate the First Amendment when they censure their members.

DECIDED MARCH 24

Question wording: An elected member of a community college board criticized other board members and was subsequently censured (given a formal reprimand). Some people think the board violated the First Amendment rights of the elected member. Other people believe that the board did not violate the member’s First Amendment rights. What do you think? | Source: SCOTUSPoll

In Ramirez v. Collier , the court ruled that Texas would violate a federal law protecting religious freedom if it executed a death row inmate without allowing his pastor to touch him and pray aloud in the execution chamber.

Question wording: Texas law barred a death row inmate from having his pastor in the chamber during his execution and placing his hands on him while praying out loud. Some people think that barring religious clergy from entering the execution chamber and touching death row inmates violates the First Amendment protections of the free exercise of religion. Other people think that it does not. What do you think? | Source: SCOTUSPoll

In United States v. Zubaydah , the court ruled that the government was not required to disclose the location of a C.I.A. black site where a detainee at Guantánamo Bay, Cuba had been tortured.

DECIDED MARCH 3

Question wording: A terrorism suspect currently being held in Guantánamo Bay says the C.I.A. used enhanced interrogation techniques and wants it investigated. The government has declassified some information, but it claims it has a right to protect state secrets in the name of national security and is not compelled to provide evidence connected to the investigation. Some people think that the government has a right to protect state secrets in the name of national security and is not compelled to provide evidence. Other people think that the government must provide evidence in such situations. What do you think? | Source: SCOTUSPoll

In Trump v. Thompson , the court ruled that former President Donald J. Trump could not block the release of White House records to a House committee investigating the Jan. 6 attack on the Capitol.

DECIDED JAN. 19

Question wording: Former President Donald Trump attempted to block the release of documents concerning his role in the events of Jan. 6, 2021, on the grounds that he has executive privilege. Some people think that executive privilege allows a former president to block the release of such records. Other people think that a former president does not have the authority to block the release of such records. What do you think? | Source: SCOTUSPoll

In National Federation of Independent Business v. Department of Labor , the court found that the Biden administration’s vaccine-or-testing mandate for large employers was not lawful.

DECIDED JAN. 13

Question wording: The federal Occupational Safety and Health Administration (OSHA) has issued a rule mandating that all employers with at least 100 employees require that their employees either be vaccinated against Covid-19 or else be tested weekly and wear masks at work. Some people think this mandate is unlawful because it exceeds OSHA’s authority. Other people think this is a reasonable use of the agency’s authority to protect workplace safety and health. What do you think? | Source: SCOTUSPoll

In Biden v. Missouri , the court found that the Biden administration’s mandate to require health care workers at facilities receiving federal money to be vaccinated was lawful.

Question wording: The federal Department of Health and Human Services (H.H.S.) has issued a rule mandating that health care workers at hospitals and other facilities participating in Medicare and Medicaid be vaccinated against Covid-19 unless they qualify for religious or medical exemptions. Some people think this mandate is unlawful because it exceeds H.H.S.’s authority. Other people think this is a reasonable use of the agency’s authority to ensure the safety of patients. What do you think? | Source: SCOTUSPoll

An earlier version of this article, relying on incorrect information provided by SCOTUSPoll, misstated the number of all respondents who believe the E.P.A. can set limits on individual power plants but cannot more broadly regulate emissions across the energy sector. It is 41 percent, not 45 percent.

National Association of Attorneys General

May 9, 2024 | Volume 31, Issue 11

This Report summarizes cases granted review on April 19 and 26, 2024 (Part I).

Case Granted Review

Bouarfa v. mayorkas , 23-583..

The question presented is whether the Secretary of Homeland Security’s “decision to revoke the approval of an immigrant visa petition is subject to judicial review in district court.” The Immigration and Nationality Act provides “a two-step process through which a noncitizen may become a legal permanent resident” by marrying a U.S. citizen. First, the citizen-spouse files an immigrant visa petition (Form I-130) “on the noncitizen’s behalf . . . requesting that the United States Citizenship and Immigration Services (USCIS) classify the noncitizen as an ‘immediate relative,’” pursuant to 8 U.S.C. §1154. Under §1154, if the noncitizen spouse previously had entered into a “sham marriage” to evade U.S. immigration laws, USCIS cannot approve the I-130 petition visa. If the petition is denied, the remedy is an administrative appeal with the Board of Immigration Appeals. If that, too, is unsuccessful, the citizen-spouse can seek judicial review. Conversely, if the petition is granted, “the noncitizen may file an application for adjustment of status [to that of legal permanent resident], which the Secretary ‘may’ grant,” pursuant to 8 U.S.C. §1155. Critically here, §1155 provides that the Secretary “may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him.” Pursuant to certain relevant regulations, and as relevant here, “[a] USCIS officer may . . . revoke the approval of a visa petition on any other appropriate ground ‘when the necessity for the revocation comes to the attention of [USCIS].’” If the approval is revoked on a non-automatic ground, the noncitizen receives notification, the opportunity to offer evidence to counter the decision and, where revocation officially occurs, written notifications with specific reasons for that decision. In that case, “[t]he petitioner may file an administrate appeal with the Board.” But in 8 U.S.C. §1252, Congress has limited judicial review of the Secretary’s discretionary decisions. Specifically, the section provides that courts lack jurisdiction to review “any other decision or action of” the Secretary where the relevant statutes have provided the Secretary with discretion in such actions or decision-making.

In 2011, petitioner Amina Bouarfa, who is a U.S. citizen, married Ala’a Hamayel, a noncitizen. Several years after they married, Bouarfa “filed a Form I-130 petition seeking to classify her husband as an immediate relative, which would make him eligible for adjustment to permanent immigration status.” In 2015, Bouarfa’s petition was approved. But two years later, USCIS issued a notice to revoke its approval of the petition on the basis that “‘it never should have approved [the] I-130 in the first place because there was substantial and probative evidence that . . . Hamayel entered his first marriage for the purpose of evading immigration laws.’” This evidence was the sworn statement of one of Hamayel’s ex-wives that their marriage was a sham in which she had asked for $5,000 in exchange for filing an I-130 petition on his behalf. Bouarfa filed a response in which she disputed the allegations with counterevidence of her own. USCIS was not persuaded by Bouarfa’s evidence, and it officially revoked its prior approval of her visa petition. Bouarfa appealed to the Board of Immigration Appeals, which upheld the revocation. When Bouarfa filed suit in district court to challenge the revocation, the Government moved to dismiss based on “Section 1252(a)(2)(B)(ii)’s bar on judicial review of the Secretary’s discretionary decisions.” The district court dismissed the case for lack of jurisdiction. The Eleventh Circuit affirmed. 75 F.4th 1157.

The Eleventh Circuit first concluded that §1155’s text demonstrates that the Secretary’s revocation decision in this situation is discretionary and therefore falls under §1252(a)(2)(B)(ii)’s jurisdictional bar. Next, the court explained that it did not matter if the basis for the revocation involved a nondiscretionary matter; the Secretary’s decision nevertheless “remain[ed] discretionary and barred from judicial review.” Finally, at bottom, petitioner’s claim was simply “that the Secretary should have exercised his discretion in a different manner.”

Bouarfa argues in her petition that the Secretary’s “nondiscretionary determination under Section [1154’s] marriage-fraud bar should not become discretionary and unreviewable simply because the agency uses that determination as the basis for a revocation rather than an initial denial.” In support of her argument, Bouarfa relies on the Supreme Court’s previous application of a legal “‘presumption favoring judicial review of administrative action’” and its immigration precedent recognizing “‘a distinction between eligibility for relief . . . and the favorable exercise of discretion.’” In addition, Bouarfa notes that there is no dispute among the circuits to address the issue that §1154’s sham-marriage provision “imposes a nondiscretionary duty on USCIS” to deny a petition. Furthermore, when USCIS denies a petition on, for instance, marriage-fraud, §1155’s standard of “good and sufficient cause” for the Secretary’s revocation “provides a meaningful standard for review” that a court can readily apply. Finally, Bouarfa expresses her concern that the Secretary will use this statutory interpretation to improperly insulate from judicial review future immigration decisions by invoking a “grant first, revoke later” standard.

The Government responds that the text of §§1155 and 1252 refute Bouarfa’s claim because together they “foreclose judicial review of the Secretary’s decision to revoke the approval of an immigrant visa petition regardless of the basis for revocation.” The Government also counters that, in the context of a “jurisdiction-stripping statute,” the text’s statute should be given greater weight than an “‘interpretive presumption.’” Finally, the Government discounts Bouarfa’s “grant first, revoke later” argument, noting that there has been no evidence of such behavior in this or any other case.

NAAG Center for Supreme Court Advocacy Staff

  • Dan Schweitzer , Director and Chief Counsel
  • Melissa Patterson , Supreme Court Fellow
  • Amanda Schwartz , Supreme Court Fellow

The views and opinions of authors expressed in this newsletter do not necessarily state or reflect those of the National Association of Attorneys General (NAAG).  This newsletter does not provide any legal advice and is not a substitute for the procurement of such services from a legal professional.  NAAG does not endorse or recommend any commercial products, processes, or services.

Any use and/or copies of the publication in whole or part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in the publications.

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JCPC to introduce ‘review of merits appeal’ rule

Justice Minister Delroy Chuck

The Judicial Committee of the Privy Council (JCPC), Jamaica’s apex court, is set to introduce a ‘review of merits appeal’ rule, a major development that will effectively reduce the number of cases brought by appellants from jurisdictions it serves.

The rule forms part of a slew of changes proposed by the United Kingdom-based court that are to take effect later this year in October.

The Privy Council has embarked on a month-long consultation process on a revision of its rules with stakeholders from across jurisdictions it serves. This is set to end on May 17.

The proposed new rule, which was tested late last year, received strong objections, forcing the Lord Robert Reed-led JCPC to consult.

Under rule 22, only a single member of the judicial committee will review the appeal of an appellant where permission has been granted by the court below or where the appellant has a right of appeal under the constitution of the jurisdiction from where the appeal comes.

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If the single member conducting the review believes that the appeal “is not devoid of merit”, a direction will be given for the appeal to proceed in the same way as if permission had been granted by the JCPC.

However, if the single member reviewing the appeal believes that it is without merit, the appellant will be invited to file submissions to show that the appeal has merit.

The submissions will then be considered without a hearing by a panel of three members of the JCPC.

If the members of the panel determine that the appeal is devoid of merit, they can dismiss the appeal summarily.

Conversely, if the appeal is not devoid of merit, the panel will direct that it continues, though they may direct that the full hearing should be before a panel of three rather than five members of the JCPC.

“This procedure was introduced to ensure that respondents are not required to spend time and costs on responding to such appeals and on preparing for hearings at which submissions on the substantive issues raised in the notice of appeal are not in the event required,” the 58-page document detailing the proposal of new rules outlines.

Respondents will be informed by the registry when the notice of appeal is issued that a review of the merits will be conducted, it said.

“Major change”

Senior constitutional lawyer, Michael Hylton K C, described the proposed rule as a “major change” in how the Privy Council operates.

Hylton said, within the Jamaican Constitution and that of other jurisdictions which accede to the Privy Council, there are two types of appeals – as of right and cases of certain monetary value or where they are of exceptional public importance.

As of right matters are automatic and are heard by five judges. Hylton stressed that, under the new rule, a single judge could cancel that right.

“… That’s what our constitution says and, if you’re going to be our final court following our constitution and our constitution says I have a right to come with my appeal, you could certainly be taking that away, and I think it is fundamentally wrong,” he argued.

“But they are our final court, so we have to take. It is not as if we can appeal against it or overrule them. Once they are our final court, whatever they do, you have to accept, which I think is a further reason to leave,” he told The Gleaner .

But Justice Minister Delroy Chuck said the move by the Privy Council is to ensure that only cases that have merit are adjudicated.

He pointed to Jamaica’s Court of Appeal, noting that a single judge may assess a case and “frequently” dismiss them at first instance. The appellant, however, has the option to further appeal to a panel of three judges, he said.

“What the Privy Council is doing is essentially what most courts of appeal do, and that is to have a single judge do an assessment. That single judge will see no merit and therefore indicate that to the applicant … .

“The Supreme Court of the United States allows less than five per cent, probably less than one per cent, of the cases that come there to be adjudicated. In other words, one or few judges will examine the case and decide that they shouldn’t proceed,” he told The Gleaner .

He said the process of eliminating unmeritorious cases is one done by all courts.

Further, Chuck said, while there is the aspect of a right of appeal, this does not mean it must be fully adjudicated.

Meanwhile, the Privy Council announced yesterday that the British government has approved a proposal by Lord Reed for overseas judges to sit on the court.

The court and the UK’s Ministry of Justice are now working on detailed arrangements to welcome judges from countries served by the Privy Council, subject to the king’s approval, the court said.

“Having the benefit of the opinion of a judge with direct experience of local conditions can only enhance the quality of the Privy Council’s decision-making,” Lord Reed said.

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  5. Judicial review in the United States

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  8. Marbury v. Madison

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  17. Historical Background on Judicial Review

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  26. Bouarfa v. Mayorkas, 23-583.

    This Report summarizes cases granted review on April 19 and 26, 2024 (Part I). Case Granted Review Bouarfa v. Mayorkas, 23-583. The question presented is whether the Secretary of Homeland Security's "decision to revoke the approval of an immigrant visa petition is subject to judicial review in district court."

  27. Historical Background on Judicial Review

    A brief review of the ongoing debate on the subject, in a work that now is a classic attack on judicial review, is Westin, Introduction: Charles Beard and American Debate Over Judicial Review, 1 790R 1 1; 1 96 1, in C. Beard, The Supreme Court and the Constitution 1 R 1 1;34 (1 962 reissue of 1 938 ed.), and bibliography at 1 33R 1 1; 1 49 ...

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