Judicial review in the United States

US Supreme Court Building

Judicial review in the United States is a process under which executive and legislative actions are subject to review by the judiciary. A court with judicial review power may invalidate laws and decisions that are incompatible with a higher authority, such as the United States Constitution. Judicial review is an example of the separation of powers in a modern governmental system. This principle is implicit in the structure of the United States Constitution.

Origins

The concept of judicial review was established before the United States Constitution was finalized. Its origins can be traced back to the early 17th century in the English legal system. However, it was the landmark decision in Marbury v. Madison (1803) that firmly established judicial review in the United States. Chief Justice John Marshall's opinion in Marbury v. Madison articulated the authority of the courts to review and nullify government actions that conflict with the Constitution.

Constitutional Basis

The Constitution of the United States does not explicitly mention judicial review. The power of judicial review has been inferred from the structure, provisions, and history of the Constitution. Article III of the Constitution establishes the judicial branch of the federal government and outlines its powers. The supremacy clause in Article VI declares the Constitution and federal laws made pursuant to it as the supreme law of the land, implying that laws contrary to the Constitution are invalid.

Scope and Power

Judicial review in the United States extends to federal laws, state laws, and administrative agency actions. It applies to both the federal government and the states, ensuring that all levels of government adhere to the Constitution. The scope of judicial review includes:

• Review of federal and state legislation
• Review of executive actions and orders
• Review of administrative agency decisions

Limitations

While judicial review is a powerful tool for ensuring the constitutionality of government actions, it is not without limitations. The judiciary can only engage in judicial review in the context of a case or controversy; it cannot issue advisory opinions. Additionally, certain political questions are deemed non-justiciable, meaning they are not suitable for judicial review because they involve issues delegated to another branch of government or lack suitable standards for a judicial determination.

Impact

Judicial review has had a profound impact on American law and society. It has been used to affirm and protect rights, strike down discriminatory laws, and shape the balance of power among the branches of government. Landmark cases such as Brown v. Board of Education (1954), which declared state laws establishing separate public schools for black and white students to be unconstitutional, and Roe v. Wade (1973), which recognized the right to privacy under the Constitution and its application to abortion rights, underscore the significant role of judicial review in addressing critical issues.

Controversies

Judicial review is not without its critics. Some argue that it gives unelected judges too much power, allowing them to overrule the will of the majority as expressed through legislative and executive actions. Others contend that judicial review is an essential check on the powers of the other branches of government, necessary to protect individual rights and liberties.