JUDICIAL REVIEW. When a court measures a statute or an executive action against a constitution, treaty, or other fundamental law, judicial review has occurred. The antecedents of modern judicial review were three: first, Edward Coke's opinion in Bonham's Case (1610), in which he declared an act of Parliament to be against "common right and reason" and therefore void; second, the opinions of the British Privy Council finding certain measures of colonial legislatures to have exceeded authorization under their royal charters; and third, early U.S. state government decisions that state statutes exceeded the permissible bounds set forth in the state constitutions. There were also some early state and federal decisions suggesting that even where the state or federal constitutions were silent, certain basic principles of "republican governments" could not be disregarded by legislators, principles that would be grounds for striking down statutes. In Calder v. Bull (1798), Supreme Court Justice Samuel Chase gave examples of the violation of these principles, such as taking one person's property to give to another, deeming an action criminal that was not illegal when committed, and making persons judge and party in their own cases.
Judicial review in America is often dated from John Marshall's opinion in Marbury v. Madison (1803). According to Marshall, a provision of the Judiciary Act of 1789 improperly extended the jurisdiction of the U.S. Supreme Court, and was therefore unconstitutional. This was the first opinion in which the Court exercised judicial review en banc (with full judicial authority). The idea of judicial review had been employed previously by several of the justices, riding circuit, to question both federal and state legislation. In Federalist No. 78, published at the time of the ratification of the U.S. Constitution, Alexander Hamilton asserted the power of judicial review in terms almost identical to those employed by Marshall in Marbury. Opponents of the Constitution believed judicial review gave the justices too much discretion, but Hamilton defended the doctrine by arguing that when the judges struck down a statute on the grounds that it was barred by the Constitution, they were merely fulfilling their task as agents of the American people—the sovereign that dictated the Constitution.
Dred Scott Case and the Fourteenth Amendment
Judicial review was infrequent during the Republic's early years, although in several notable cases, including Fletcher v. Peck (1810), Dartmouth College v. Woodward (1819), and Gibbons v. Ogden (1824), the Marshall Court ruled that state legislatures had exceeded the bounds permitted them under the federal Constitution. Not until the Taney Court decided the Dred Scott Case (1857), however, was a second federal statute ruled unconstitutional. In a 7 to 2 decision, Chief Justice Taney ruled that Congress had no power to forbid slavery in the territories, because the Fifth Amendment to the Constitution barred Congress from taking property without "due process." According to Taney, forbidding slavery amounted to the obliteration of a property interest that could not be "dignified with the name of due process."
At the beginning of the twenty-first century the Dred Scott case is regarded with universal disapprobation. Still, Taney's statement of the proper philosophy of judicial review—that the Court should interpret the Constitution's provisions as they were understood at the time of the Constitution's ratification—has merit and is itself in accordance with the understanding of the framers. Taney's elevation of property rights to the central constitutional concern is also in keeping with the framers' views.
Nevertheless, in Dred Scott, Taney belied his own judicial philosophy when he failed to recognize that at the time of the framing of the Constitution there was a presumption in favor of human freedom and a widespread belief that slavery was contrary to natural law. As such, there was less protection for slavery than for other forms of property, and congressional prohibition of slavery where it had not been established by positive law should have been permissible. Another principal holding of Dred Scott—that even free blacks were not regarded as "citizens" at the time of the ratification of the Constitution—is similarly debatable. Through 2002, Dred Scott continued to be invoked as a symbol of judicial review's excesses.
After the Civil War a series of constitutional amendments were passed, some provisions of which reversed Dred Scott. The Thirteenth Amendment forbade slavery and the Fourteenth Amendment made clear that citizen-ship could not be denied because of race. The Fourteenth Amendment also further circumscribed the powers of state governments by providing that no state could deprive any person of the "equal protection of the laws," take a person's "life, liberty or property without due process of law," or "abridge the privileges and immunities of citizens of the United States." The meaning of these provisions is obscure, but thereafter the Fourteenth Amendment was invoked in the most dramatic instances of judicial review.
The Fourteenth Amendment was intended to improve the lot of the newly freed slaves, but it soon came to be employed in a different context. As states began to impose new forms of economic regulation, many businesses and corporations argued that they possessed Fourteenth Amendment rights that had been infringed. They asserted a "right to contract" that they claimed inhered in the due process provision of the Fourteenth Amendment. Just as Taney believed that a congressional statute that took away a right to property in slaves could not be regarded as due process, so some began to argue that to infringe on the right to contract with one's employees did not meet the requirements of due process. Because this argument did not deal with "process" in its usual sense, it came to be known as substantive due process. This doctrine assumes that there are some subjects on which legislation simply should not be permitted.
A number of Supreme Court decisions found state regulatory legislation unconstitutional. The most famous was Lochner v. New York (1905), in which the Court invalidated, on substantive due process grounds, New York legislation that set maximum hours for bakers. Lochner's majority was chastised by Oliver Wendell Holmes Jr. in a fiery dissent. He claimed that the majority was imposing its own policy preferences on New York, and was reading into the Constitution a particular economic theory which the framers had not intended.
The New Deal
Until 1937 the U.S. Supreme Court continued to employ judicial review in service of a conservative, business-oriented view of the Constitution. When the Great Depression led to federal regulatory efforts of an unprecedented scope, it was inevitable that the Court would be asked to review the constitutionality of these measures. There were a number of decisions, some upholding New Deal legislation. But in the most notable cases, the Court held that Congress's power to regulate interstate commerce was limited and could not be stretched to include manufacturing or processing which took place within a single state. Schechter Poultry Corporation v. United States (1935), for example, invalidated the National Industrial Recovery Act (1933).
Schechter Poultry infuriated President Franklin Roosevelt, who bemoaned the Court's use of a "horse-and-buggy" definition of interstate commerce. Roosevelt challenged the Court's interpretive strategy of defining terms the way they had been understood by the framers, and argued for a dynamic interpretation to fit the Constitution to the needs of the times. Roosevelt, in his fulmination, threatened to pack the court by appointing additional justices sympathetic to his views. But before he could, the Court dramatically changed interpretive course.
The case that demonstrated the Court's interpretive shift most clearly was National Labor Relations Board v. Jones and Laughlin Steel Corporation (1937), in which the Court allowed Congress to use its powers to regulate interstate commerce to create the National Labor Relations Board, with jurisdiction to mandate collective bargaining and union organizing within manufacturing plants. The Court's logic was that a strike at the Pennsylvania steel plant in question might have consequences for interstate commerce and that this possibility permitted federal regulation. This logic could support federal regulation of nearly anything, and was employed until late in the twentieth century. Jones and a number of other cases also rejected the predominance earlier given to freedom of contract, and substantive economic due process died.
The Warren Court
Several striking instances of modern judicial review occurred during the chief justiceship of Earl Warren, who adopted the notion advanced by Franklin Roosevelt that the Constitution ought to be perceived as a "living document." In the landmark case of Brown v. Board of Education of Topeka (1954), the Warren Court announced that constitutional jurisprudence could not "turn back the clock." Warren, writing for a unanimous Court, held that racially segregated schools violated the Fourteenth Amendment's guarantee of equal protection of the laws, and that the practice had to end. There was strong evidence that this had not been the intention of the amendment, but the Court brushed this objection aside. The events Brown set in motion altered racial relations in America forever, and initiated a pattern of judicial activism unlike any other.
The Warren Court embraced earlier decisions which had held, in spite of a paucity of evidence, that the Fourteenth Amendment was intended to extend the Bill of Rights' prohibitions against the federal government to forbid actions by the states. The Court proceeded, wholesale, to refashion state and local government and law enforcement. The Court ruled that state laws requiring compulsory Bible reading or school prayer violated the First Amendment. It decided that the Fourth Amendment's prohibition on unreasonable searches and seizures meant that local law enforcement officials had to follow particular procedures dictated by the federal courts or have the evidence they obtained thrown out of court. The Court read the Fourteenth Amendment's equal protection language to mean that both houses of the state legislatures had to be apportioned on the basis of population, refusing to allow the states to emulate the federal Constitution's model of one chamber determined by population, and another by political subdivision.
Roe v. Wade
For most of the period of the Burger and Rehnquist Courts, much of the reformist zeal of the Warren Court prevailed. In an exercise of constitutional interpretation second in boldness only to Brown, the Court in Roe v. Wade (1973) ruled 7 to 2 that state prohibitions on abortion during the first trimester of pregnancy violated the Fourteenth Amendment's requirement of due process. Thus did substantive due process return, though in neither the property rights guise of Dred Scott or the economic aspect of Lochner.
The audacity of Roe led to an unsuccessful struggle in the legal academy to articulate a theory of judicial review that might reconcile the Court's conduct with Hamilton's idea that judicial review merely carried out the will of the people. Although the Court had been unwilling to overturn Roe, by 2002 it survived by the slimmest of margins. The Warren Court's decisions regarding state-sponsored prayer were generally upheld as late as 2002, with the Rehnquist Court barring officially selected prayers at school graduations and even at football games. Lower federal courts nibbled away at the school prayer decisions at the beginning of the twenty-first century, however, by permitting schools to impose "moments of silence" with prayer among the permitted meditative activities.
The Rehnquist Court
With the landmark case of United States v. Lopez (1995), the Supreme Court, under Chief Justice William Rehnquist, announced for the first time since the New Deal that a federal regulatory measure was not permitted under the commerce clause. Congress had sought to impose federal criminal penalties on those who carried unauthorized firearms in or near any school in the nation. Proponents of the act argued that firearms disrupted education and that the disruption of education would eventually have an adverse affect on interstate commerce. This rationale was no more strained that that which had permitted the Court to allow many New Deal measures, but in a 5 to 4 ruling, the Court decided that to permit this commerce clause argument to prevail in Lopez would be to allow unlimited federal regulation.
A later Rehnquist Court case, United States v. Morrison (2000), applied similar logic to reject some provisions of the federal Violence Against Women Act, holding that basic criminal law enforcement was a matter for the state and local governments rather than the federal government. Lopez and Morrison, and a variety of other cases concerned with the assertion of state sovereign immunity and the prohibition on conscripting state and local officials into federal law enforcement, were perceived in the 1990s as the Rehnquist Court's assertion of a "new federalism." Critics charged that the Court's newly activist conservative majority was bent on construing the Constitution in a manner that sharply restricted what the federal government could do, and threatened its role as the protector of civil rights. The Rehnquist Court's defenders argued that it was returning to a jurisprudence of original understanding, and receding from the wanton readings of the Constitution during the Warren Court years.
But if the Rehnquist Court's new federalism decisions could be defended as an exercise in returning the Constitution to its original scheme, it was difficult to make that argument in support of the Rehnquist Court's most ambitious act of judicial review, in Bush v. Gore (2000). For the first time, the Supreme Court, at the instance of a presidential candidate, held that a state court's interpretation of state election law violated the equal protection clause of the Fourteenth Amendment. Seven justices agreed there was an equal protection violation, but only five concurred in the Court's remedy of barring further ballot recounts in Florida, in effect awarding the presidency to George W. Bush.
In 2001 and 2002, justifications were advanced for what the Court did (most centering around the country's need to put an end to election proceedings that threatened to drag out for months or years). But the Court's equal protection reasoning was dubious and the Court itself took pains to limit its holding to the case at hand. Many sympathetic to the Gore candidacy believed that the Court stole the election for Bush. Not surprisingly, no sooner did the Democrats take control of the Senate in early 2001 than a series of hearings was scheduled on "judicial ideology." Democratic senators were concerned about preserving the legacy of the Warren Court, and worried that the Rehnquist Court was embarked upon "judicial activism." During the first months of 2001, no Bush nominees were confirmed to the federal courts and Democrats asserted that there was a need for a balance of interpretive approaches on the bench. Republicans countered this argument by asserting that ideology had no place in judging, which, they claimed, ought to be conceived of as an objective search for the original under-standing of the legislature or the sovereign people. The nature of judicial review had once again become one of the most important issues in national politics.
Dionne, E. J., Jr., and William Kristol, eds. Bush v. Gore: The Court Cases and the Commentary. Washington, D.C.: Brookings Institution, 2001.
Ely, John Hart. Democracy and Distrust: A Theory of Judicial Review. Cambridge, Mass.: Harvard University Press, 1980.
Perry, Michael J. The Constitution, the Courts, and Human Rights: An Inquiry into the Legitimacy of Constitutional Policymaking by the Judiciary. New Haven, Conn.: Yale University Press, 1982.
Presser, Stephen B. Recapturing the Constitution: Race, Religion, and Abortion Reconsidered. Lanham, Md.: National Book Network, 1994.
Wolfe, Christopher. The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law. New York: Basic Books, 1986.
Wood, Gordon S. The Creation of the American Republic, 1776–1787. Chapel Hill: University of North Carolina Press, 1969.
See alsoSupreme Court .
"Judicial Review." Dictionary of American History. . Encyclopedia.com. (June 25, 2017). http://www.encyclopedia.com/history/dictionaries-thesauruses-pictures-and-press-releases/judicial-review
"Judicial Review." Dictionary of American History. . Retrieved June 25, 2017 from Encyclopedia.com: http://www.encyclopedia.com/history/dictionaries-thesauruses-pictures-and-press-releases/judicial-review
Judicial review is the legal principle that recognizes the power of courts to declare an act of Congress or the president unconstitutional. This power was most firmly established in the 1803 U.S. Supreme Court case of Marbury v. Madison. In a larger sense, the case exemplifies the uncertainties of litigation and how law evolves in a democratic form of government. It was the uncertainty embedded in litigation that prompted Supreme Court Justice Oliver Wendell Holmes (1841–1945) to declare that the object of the law is prediction when he stated that: “the prophecies of what the courts will do in fact, and nothing more pretentious are what I mean by the law” (1897, p. 461). In the American judicial system, what courts will do in fact about legal controversies brought before them will necessarily differ and possibly evolve from one case to another depending upon the facts and circumstances surrounding each case. Although the Framers conceived of the judiciary as the “least dangerous branch” insofar as the constitutional rights of the people are concerned, many now believe that this claim no longer rings true because they see the Supreme Court as the most powerful of the three stations of constitutional power in U.S. government. For the most part, the Court owes its current power and high status to the principle of judicial review.
The story of the origin of modern judicial review started in earnest with the presidential election of 1800 between the incumbent president John Adams (1735–1826) and the challenger Thomas Jefferson (1743–1826). That contest produced no clear winner after all Electoral College votes were counted. In that situation, the U.S. Constitution requires the House of Representatives to settle the election by choosing the president and vice president. During the month of February 1801, after much debate in Congress, Thomas Jefferson was selected president and Aaron Burr (1756–1836) vice president. Because the Federalist Party (the modern-day Democratic Party) had lost control of Congress and the presidency, the outgoing president, John Adams, proposed and Congress approved the Circuit Court Act of 1801, which authorized six new circuit courts and several district courts to accommodate the new states of Kentucky, Tennessee, and Vermont. This bill guaranteed the Federalists temporary control over the judiciary. During his final six months in office, John Adams submitted well over two hundred nominations to Congress, with sixteen judgeships approved by the Senate during his last two weeks in office.
One of the most important developments that took place during this transition period was that Federalist Oliver Ellsworth (1795–1800) resigned his position as chief justice of the Supreme Court, giving Adams an opportunity to name a Federalist successor. Adams immediately turned to former Chief Justice John Jay (1745–1829), who had resigned to become the governor of New York. Jay refused to return to the center chair. Then Adams turned to his secretary of state, John Marshall (1755–1835). Marshall accepted the appointment and was quickly confirmed by the Senate in January 1801 while he was still serving as secretary of state.
In addition to the Circuit Court Act, the Federalist Congress enacted the Organic Act, authorizing the president to appoint forty-two justices of the peace in the District of Columbia. The men Adams chose to fill these positions were called “midnight appointees,” and virtually all were Federalists. It is noteworthy that this seemingly trivial act would set the stage for the most dramatic event that led to the Court’s decision in Marbury v. Madison, the case that firmly established the doctrine of judicial review.
During the last days of John Adams’s administration, there was a sudden rush to clean house in preparation for the new administration’s arrival. As a result, Secretary of State John Marshall neglected to deliver some of the commissions for justice of the peace. If he had not neglected this duty, the ensuing controversy would have been avoided. One of these commissions belonged to William Marbury, a resident of the District of Columbia. When the new administration assumed power, Thomas Jefferson was displeased with his predecessor’s blatant effort to pack the judiciary with Federalist loyalists. Therefore, he ordered his secretary of state, James Madison (1751–1836), not to deliver the commissions. Determined to obtain their commissions, Marbury and three others went directly to the Supreme Court. They invoked the Court’s original jurisdiction powers and requested a writ of mandamus, which is an order that would require a government official (in this case, the secretary of state) to perform a government function (e.g., deliver the commissions). The case was placed on the Court’s docket for the 1802 term. But while the case was pending, the new Republican majority in Congress decided to eliminate the entire 1802 Supreme Court term out of anger toward the actions of a lame-duck president, and so the decision in Marbury v. Madison was postponed until February 24, 1803.
This case presented John Marshall and the Supreme Court with a daunting predicament. Should the Supreme Court issue the writ of mandamus? What if the writ were issued and President Jefferson (through his secretary of state) refused to honor it? These were important questions requiring careful deliberation. Certainly the potential institutional consequences for the Supreme Court could be disastrous if the Court made the wrong choice. The balance of power in the government would be dramatically altered and the Court would suffer further diminished influence in the current and future affairs of government. Worse still, Jefferson and subsequent presidents could play fast and loose with the Constitution by assuming an inherit authority to act as they pleased without the watchful eye of the Court.
One can think of this case as a game of strategy. Both the Court and the president had real choices to make and each choice presented a real consequence. Since the Supreme Court had to make a decision after receiving the case, it got to move first in the game. The Court had to decide whether to issue the writ or not. If the Court chose to issue the writ, President Jefferson would probably choose not to honor it, precipitating a constitutional crisis. In this outcome, the Court would be severely weakened since it would lack the power to enforce its own decisions. If Jefferson honored the writ, however, that choice would be viewed as an embarrassing defeat for him and his administration. His power of persuasion would be damaged. Neither of these two possible scenarios—the Court’s choices or the president’s—sounded promising.
If, on the other hand, the Supreme Court failed to issue the writ, it would be viewed as weak by members of the Federalist Party in Congress and Marshall’s reputation within the party would be severely tarnished. The remaining decisional choice was for the Court to declare the law authorizing William Marbury’s legal request unconstitutional. The Court settled for this option, thereby avoiding a constitutional confrontation with the president. By declaring a federal law null and void for the first time, the Supreme Court firmly ushered in judicial review and sent a clear message that it stood ready to assert itself as an independent and coequal branch of the federal government. Historians of the Marbury affair consider the Court’s decision something of sheer genius, although by all practical purposes it is possible that both the Supreme Court and the president were merely reacting rationally based upon information available to them.
How did John Marshall and the Supreme Court reach that decision? Analysis of the opinion suggests that the Court addressed three interrelated questions raised in the case. First, was William Marbury legally entitled to the commission? The Court answered yes, noting that the commission was indeed signed by the president; hence the appointment was made and it was completed when the secretary of state affixed a seal of the United States. Marbury therefore suffered a legal injury and as a matter of right was entitled to the commission. Second, did the law afford Marbury a remedy for his claim? Yes. Failing to offer Marbury an appropriate remedy would amount to a plain violation of his right under the Constitution. Finally, was that remedy a mandamus issued by the Supreme Court? The Court said no. Even though the Judiciary Act of 1789 authorized the Court to issue a writ of mandamus to “persons holding office, under the authority of the United States,” the Court lacked the proper jurisdiction to issue a writ of mandamus because Section 13 of that Act provides an unconstitutional grant of original powers to the Supreme Court. Article III of the U.S. Constitution specifies in full the original jurisdiction powers of the Supreme Court. To alter that constitutional grant of power requires a constitutional amendment, not a congressional statute.
Judged under proper standards of ethical behavior, it seems that Marshall should have exempted himself from participating in this case since his own absent-mindedness precipitated the conflict in the first place. Although the law creating the vacancies for justice of the peace was later repealed by the anti-Federalist Congress, its legacy has lived and will continue to live on for generations to come.
The significance of Marbury v. Madison is that it declared an act of Congress unconstitutional, thereby affirming judicial review and independence. But the idea of judicial review itself was neither new nor born in that case. For instance, in 1795, eight years before the Marbury decision came down, there was a glimpse of the Court’s thinking on the issue of judicial review in the case of Van Horne’s Lessee v. Dorrance. In that case, Justice William Paterson (1745–1806) explained that in the American form of government, the “Constitution is the sun of the political system, around which all Legislative, Executive, and Judicial bodies must revolve. Whatever may be the case in other countries, yet in this there can be no doubt, that every act of the Legislature, repugnant to the Constitution, is absolutely void” (The Supreme Court of the United States 1992, p. 18). It was the principle elegantly expressed by Justice Paterson that Marbury v. Madison confirmed and later institutionalized as the most wide-ranging grant of power to the American judiciary.
Since Marbury’s decision came down, the Supreme Court has relied on its power of judicial review to redefine the institutional relationships between the three branches of government, as well as the power-sharing relationships between the states and federal government. Most observers think judicial review has been a success. And this can be seen in part by the adoption of judicial review by emerging and even well-established democracies. In 2004, for example, an independent judiciary with the power of judicial review in Ukraine nullified a widely perceived fraudulent presidential election. In South Africa, Ecuador, and many other young democracies, judicial review has been adopted as an institutional reform to bring about a sense of permanence and stability to their governments. Clearly, these countries have seen the benefits of judicial review in the United States and other established democracies, such as Germany, Japan, and Spain.
SEE ALSO Activism, Judicial; Bill of Rights, U.S.; Electoral College; Judiciary; Supreme Court, U.S.
Clinton, Robert Lowry. 1994. Game Theory, Legal History, and the Origins of Judicial Review: A Revisionist Analysis of Marbury v. Madison. American Journal of Political Science 38: 285–302.
Epstein, Lee, and Thomas G. Walker. 2004. Constitutional Law for a Changing America: Rights, Liberties, and Justice. 5th ed. Washington DC: CQ Press.
Haskins, George L., and Herbert Johnson. 1981. Foundations of Power: John Marshall, 1801–1815. New York: Macmillan.
Holmes, Oliver Wendell. 1897. The Path of the Law. Harvard Law Review 10: 457.
The Supreme Court of the United States: Its Beginnings and its Justices, 1790–1991. 1992. Washington, DC: Commission on the Bicentennial of the United States Constitution.
"Judicial Review." International Encyclopedia of the Social Sciences. . Encyclopedia.com. (June 25, 2017). http://www.encyclopedia.com/social-sciences/applied-and-social-sciences-magazines/judicial-review
"Judicial Review." International Encyclopedia of the Social Sciences. . Retrieved June 25, 2017 from Encyclopedia.com: http://www.encyclopedia.com/social-sciences/applied-and-social-sciences-magazines/judicial-review
A court's authority to examine an executive or legislative act and to invalidate that act if it is contrary to constitutional principles.
The power of courts of law to review the actions of the executive and legislative branches is called judicial review. Though judicial review is usually associated with the U.S. Supreme Court, which has ultimate judicial authority, it is a power possessed by most federal and state courts of law in the United States. The concept is an American invention. Prior to the early 1800s, no country in the world gave its judicial branch such authority.
In the United States, the supremacy of national law is established by Article VI, Clause 2, of the U.S. Constitution. Called the supremacy clause, it states that "This Constitution, and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land." It goes on to say that, "judges in every state shall be bound thereby." This means that state laws may not violate the U.S. constitution and that all state courts must uphold the national law. State courts uphold the national law through judicial review.
Through judicial review, state courts determine whether or not state executive acts or state statutes are valid. They base such rulings on the principle that a state law that violates the U.S. constitution is invalid. They also decide the constitutionality of state laws under state constitutions. If, however, state constitutions contradict the U.S. Constitution, or any other national statute, the state constitution must yield. The highest state court to decide such issues is the state supreme court.
While judicial review of state laws is clearly outlined in the supremacy clause, the Framers of the U.S. Constitution did not resolve the question of whether the federal courts should have this power over congressional and executive acts. During the early years of the Republic, the Supreme Court upheld congressional acts, which implied the power of judicial review. But the key question was whether the Court had the power to strike down an act of Congress.
In 1803, the issue was settled in marbury v. madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60, when the Supreme Court, for the first time, ruled an act of Congress unconstitutional. In Marbury, Chief Justice john marshall reasoned that since it is the duty of a court in a lawsuit to declare the law, and since the Constitution is the supreme law of the land, where a rule of statutory law conflicts with a rule of the Constitution, then the law of the Constitution must prevail. Marshall asserted that it is "emphatically the province and duty of the judicial department, to say what the law is."
Having established the power of judicial review, the Supreme Court applied it only once prior to the Civil War, in 1857, ruling the missouri compromise of 1820 unconstitutional in dred scott v. sandford, 60 U.S. (19 How.) 393, 15 L. Ed. 691. During the same period, the Court invalidated several state laws that came in conflict with the Constitution. In m'culloch v. maryland, 17 U.S. 316, 4 L. Ed. 579 (1819), the Court invalidated a state's attempt to tax a branch of the bank of the united states. In gibbons v. ogden, 22 U.S. 1, 6 L. Ed. 23 (1824), the Court struck down a New York law granting a monopoly to a steamboat company, saying that the state law conflicted with a federal law granting a license to another company.
In addition to invalidating state laws, the Marshall Court established the authority to overrule decisions of the highest state courts. In martin v. hunter's lessee, 14 U.S. 304, 4 L. Ed. 97 (1816), the Court referred to the supremacy clause to assert that its appellate power extended to state courts.
Following the Civil War, the Supreme Court grew concerned that the recently-passed fourteenth amendment would give the federal government too much power over state governments and individual rights. Therefore, it used the power of judicial review to strike down federal civil rights laws that sought to address racial discrimination in the former Confederate states. Beginning in 1890, the Court became embroiled in political controversy when it exercised its power of judicial review to limit government regulation of business. In Chicago, Milwaukee, & St. Paul Railroad Co. v. Minnesota, 134 U.S. 418, 10 S. Ct. 462, 33 L. Ed. 970 (1890), the Court struck down a state law establishing a commission to set railroad rates. This case was the first of many where the Court applied the doctrine of substantive due process to invalidate state and federal legislation that regulated business. Substantive due process was a vague concept that required legislation to be fair, reasonable, and just in its content.
Through the early 1900s, the Court came under attack from Populists and Progressives for its desire to insulate capitalism from government intervention. Unmoved by its critics, the Court proceeded to invalidate a federal income tax (pollock v. farmers' loan & trust co., 157 U.S. 429, 15 S. Ct. 673, 39 L. Ed. 759 ), limit the scope of the sherman anti-trust act (United States v. E. C. Knight Co., 156 U.S. 1, 15 S. Ct. 249, 39 L. Ed. 325 ), and forbid states to regulate working hours (lochner v. new york, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 ).
The Supreme Court's use of substantive due process brought charges of "judicial activism," which means that in determining whether laws would meet constitutional muster, the Court was accused of acting more as a legislative body than as a judicial body. Justice oliver wendell holmes jr., in his famous dissenting opinion in Lochner, argued for "judicial restraint," cautioning the Court that it was usurping the function of the legislature.
Despite Holmes's warning the Court continued to strike down laws dealing with economic regulation into the 1930s. In 1932, the United States, in the midst of the Great Depression, elected franklin d. roosevelt president. Roosevelt immediately began to implement his new deal program, which was based on the federal government's aggressive regulation of the national economy. The Supreme Court used its power of judicial review to invalidate eight major pieces of New Deal legislation.
Roosevelt, angry at the conservative justices for blocking his reforms, proposed legislation that would add new appointees to the Court—appointees that would create a liberal majority. This "court-packing" plan aroused bipartisan opposition and ultimately failed. But the Court may have gotten Roosevelt's message, for in 1937, it made an abrupt turnabout: a majority of the Court abandoned the substantive due process doctrine and voted to uphold the wagner act, which guaranteed to industrial workers the right to unionize and bargain collectively (national labor relations board v. jones & laughlin steel corp., 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893 ).
With this decision the Court ceased to interpret the Constitution as a barrier to social and economic legislation. The Court subsequently upheld congressional legislation that affected labor relations, agricultural production, and social welfare. It also exercised judicial restraint with respect to state laws regulating economic activity.
Beginning in the 1950s, the Supreme Court exercised its judicial review power in cases involving civil rights and civil liberties. During the tenure of Chief Justice earl warren, from 1953 to 1969, the Court declared federal statutes unconstitutional in whole or in part in 25 cases, most of the decisions involving civil liberties. The Warren Court's decision in brown v. board of education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), however, invalidated state laws that mandated racially segregated public schools.
The Supreme Court became increasingly conservative in the 1970s. Yet, in 1973, under Chief Justice warren e. burger, it invalidated state laws prohibiting abortion in roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147. Since the elevation of william h. rehnquist to chief justice in 1986, the Court has continued its movement to the right, although it has not retreated from most of the protections it recognized under Warren in the realm of civil rights and civil liberties.
The exercise of judicial review is subject to important rules of judicial self-restraint, which restrict the Supreme Court, and state courts as well, from extending its power. The Supreme Court will hear only cases or controversies, actual live disputes between adversary parties who are asserting valuable legal rights. This means the Court cannot issue advisory opinions on legislation. In addition, a party bringing suit must have standing (a direct stake in the outcome) in order to challenge a statute.
The most important rule of judicial restraint is that statutes are presumptively valid, which means that judges assume legislators did not intend to violate the Constitution. It follows that the burden of proof is on the party that raises the issue of unconstitutionality. In addition, if a court can construe a disputed statute in a manner that allows it to remain intact without tampering with the meaning of the words or if a court can decide a case on nonconstitutional grounds, these courses are to be preferred. Finally, a court will not sit in judgment of the motives or wisdom of legislators, nor will it hold a statute invalid merely because it is deemed to be unwise or undemocratic.
Dellinger, Walter, and Christopher H. Schroeder. 2003. "The Case for Judicial Review." Washington Post (December 6).
Curtis, Kent. 2003. "Judicial Review and Populism." Wake Forest Law Review 3 (summer): 313–74.
Kramer, Larry D. 2004. The People Themselves: Popular Constitutionalism and Judicial Review. New York: Oxford Univ. Press.
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Prakash, Saikrishna B., and John C. Yoo. 2003. "The Origins of Judicial Review." University of Chicago Law Review 70 (summer): 887–982.
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