what is judicial review

judicial review

Primary tabs.

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 ]

• ACADEMIC TOPICS
• legal education and writing
• THE LEGAL PROCESS
• judicial administration
• legal practice/ethics
• constitutional law
• courts and procedure
• legal education and practice
• wex definitions

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

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 Is Judicial Review?

• U.S. Legal System
• History & Major Milestones
• U.S. Constitution & Bill of Rights
• U.S. Political System
• Defense & Security
• Campaigns & Elections
• Business & Finance
• U.S. Foreign Policy
• U.S. Liberal Politics
• U.S. Conservative Politics
• Women's Issues
• Civil Liberties
• The Middle East
• Race Relations
• Immigration
• Crime & Punishment
• Canadian Government
• Understanding Types of Government
• M.A., History, University of Florida
• B.A., History, University of Florida

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

Key Takeaways: Judicial Review

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

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

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

Marbury vs. Madison and Judicial Review

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

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

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

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

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

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

Expansion of Judicial Review

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

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

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

Examples of Judicial Review in Practice

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

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

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

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

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

Updated by Robert Longley

• Marbury v. Madison
• 7 Important Supreme Court Cases
• Overview of United States Government and Politics
• Separation of Powers: A System of Checks and Balances
• National Supremacy and the Constitution as Law of the Land
• Basic Structure of the US Government
• 5 Ways to Change the US Constitution Without the Amendment Process
• Presidential Executive Privilege
• The Three Branches of US Government
• Line-Item Veto: Why the U.S. President Does Not Have This Power
• The Judicial Branch
• The Powers of Congress
• Ninth Amendment Supreme Court Cases
• What Is the "Necessary and Proper" Clause in the US Constitution?
• Legislative Powers of the President of the United States
• Unitary Executive Theory and the Imperial Presidency

• Find a Lawyer
• Ask a Lawyer
• Research the Law
• Law Schools
• Laws & Regs
• Newsletters
• Justia Connect
• Pro Membership
• Basic Membership
• Justia Lawyer Directory
• Platinum Placements
• Gold Placements
• Justia Elevate
• Justia Amplify
• PPC Management
• Google Business Profile
• Social Media
• Justia Onward Blog

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

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

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

Jurisdiction of the Supreme Court

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

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

The Power of Judicial Review

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

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

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

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

Last reviewed June 2023

Constitutional Law Center Contents   

• Constitutional Law Center
• The U.S. Supreme Court & the Legal Scope of Its Authority
• Due Process Rights Legally Provided by the Constitution
• Equal Protection Rights Legally Provided by the Constitution
• Freedom of Speech Under the Constitution
• Religious Freedom Under the Constitution
• Abortion and Reproductive Rights Under the Constitution
• Gun Rights Under the Constitution
• LGBTQ+ Legal Rights Under the Constitution
• The Death Penalty Under the Constitution
• The Commerce Power of Congress Legally Granted by the Constitution
• Abortion Laws: 50-State Survey
• Foreign Abortion Laws
• Gun Laws 50-State Survey
• Death Penalty Laws: 50-State Survey
• Constitutional Law FAQs

Related Areas   

• Civil Rights and Discrimination Legal Center
• Criminal Law Center
• Family Law Center
• Communications and Internet Law Center
• LGBTQ+ Legal Resource Center
• Native American Law Center
• Related Areas
• Bankruptcy Lawyers
• Business Lawyers
• Criminal Lawyers
• Employment Lawyers
• Estate Planning Lawyers
• Family Lawyers
• Personal Injury Lawyers
• Estate Planning
• Personal Injury
• Business Formation
• Business Operations
• Intellectual Property
• International Trade
• Real Estate
• Financial Aid
• Course Outlines
• Law Journals
• US Constitution
• Regulations
• Supreme Court
• Circuit Courts
• District Courts
• Dockets & Filings
• State Constitutions
• State Codes
• State Case Law
• Legal Blogs
• Business Forms
• Product Recalls
• Justia Connect Membership
• Justia Premium Placements
• Justia Elevate (SEO, Websites)
• Justia Amplify (PPC, GBP)
• Testimonials

• Find a Lawyer
• Ask a Lawyer
• Research the Law
• Law Schools
• Laws & Regs
• Newsletters
• Justia Connect
• Pro Membership
• Basic Membership
• Justia Lawyer Directory
• Platinum Placements
• Gold Placements
• Justia Elevate
• Justia Amplify
• PPC Management
• Google Business Profile
• Social Media
• Justia Onward Blog

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).

Get free summaries of new US Supreme Court opinions delivered to your inbox!

• Bankruptcy Lawyers
• Business Lawyers
• Criminal Lawyers
• Employment Lawyers
• Estate Planning Lawyers
• Family Lawyers
• Personal Injury Lawyers
• Estate Planning
• Personal Injury
• Business Formation
• Business Operations
• Intellectual Property
• International Trade
• Real Estate
• Financial Aid
• Course Outlines
• Law Journals
• US Constitution
• Regulations
• Supreme Court
• Circuit Courts
• District Courts
• Dockets & Filings
• State Constitutions
• State Codes
• State Case Law
• Legal Blogs
• Business Forms
• Product Recalls
• Justia Connect Membership
• Justia Premium Placements
• Justia Elevate (SEO, Websites)
• Justia Amplify (PPC, GBP)
• Testimonials