Judicial Review

Judicial Review. Judicial review, the power of courts to determine the legality of governmental acts, usually refers to the authority of judges to decide a law's constitutionality. Although state courts exercised judicial review prior to the ratification of the Constitution, the doctrine is most often traced to the landmark U.S. Supreme Court decision Marbury v. Madison (1803), which struck down an act of Congress as unconstitutional. In a now classic opinion, Chief Justice John Marshall found the power of judicial review implied in the Constitution's status as “the supreme Law of the Land” prevailing over ordinary laws.

Both federal and state courts have exercised judicial review. Federal courts review federal and state acts to ensure their conformity to the Constitution and the supremacy of federal over state law; state courts review laws to ensure their conformity to the U.S. Constitution and their own state constitutions. The power of judicial review can be exercised by any court in which a constitutional issue arises.

Judicial review gained added importance in the late nineteenth and early twentieth centuries, as courts passed judgment on laws regulating corporate behavior and working conditions. In these years, the Supreme Court repeatedly struck down laws regulating wages, hours of labor, and safety standards. This is often called the Lochner Era, after Lochner v. New York, a 1905 decision ruling a New York maximum‐hours law unconstitutional on the grounds that it violated the due‐process clause of the Fourteenth Amendment. During this period, the Supreme Court invalidated no fewer than 228 state laws.

Justice Oliver Wendell Holmes Jr., dissenting from many of these decisions, urged judges to defer to legislatures. In the later 1930s, the Supreme Court adopted the Holmes approach—partly in response to the threat of President Franklin Delano Roosevelt's “court packing” plan of 1937. Deferring to legislative judgment, the Supreme Court thereafter upheld virtually all laws regulating business and property rights, including laws similar to those invalidated during the Lochner Era.

Under the chief justiceship of Earl Warren (1953–1969) and beyond, however, the Court moved toward striking down laws restricting the personal rights and liberties guaranteed by the Bill of Rights, particularly measures limiting freedom of expression, freedom of religion, the rights of criminal defendants, equal treatment of the sexes, and the rights of minorities to equal protection of the law. In another extension of judicial review, the Court read new rights into the Constitution, notably the right of privacy (including abortion rights), and invalidated laws restricting those rights. Many other countries, including Germany, Italy, France, and Japan, adopted the principle of judicial review after World War II, making constitutional law one of the more important recent American exports.
See also Federal Government: Judicial Branch; Federalism; State Governments.

Bibliography

Bernard Schwartz , A History of the Supreme Court, 1993.

Bernard Schwartz