Judicial review and the Supreme Court

DEFINITION: The Supreme Court’s power to declare lower court decisions, state constitutional provisions, state laws, federal legislation, and other actions to be contrary to the US Constitution. When it does so, these actions become null and unenforceable.

SIGNIFICANCE: The Court’s most important and controversial power is not mentioned explicitly in the US Constitution but is implied by the notion of a written constitution and the rule of law.

The Supreme Court’s power of judicial review can be viewed as either unexceptional or radically controversial. The Court’s power derives from the principle of uniformity necessary to maintain a common-law court system of the kind that evolved out of the British experience. The word “common” in common law means uniform across the country. This uniformity is achieved by having appellate courts resolve conflicts from lower courts. The Court departed from that experience by claiming that laws passed by Congress and signed by the president could also be declared unconstitutional if they did not conform to the principles in a transcendent legal document: the US Constitution. The British legal system does not use this precept because there is no authoritative document that can be used for purposes of comparison in declaring laws unconstitutional. Rather, its view is that the authority of the “monarch in parliament” is absolute, and courts may not overturn its enactments. Although the British Law Lords occasionally set aside the impact of parliamentary enactments through interpretation, such results are comparatively minor and quite rare.

The Court’s power of judicial review is important because it could, theoretically, place the Court in a position to govern the entire country unless the Court exercises self-restraint. In principle, judicial review could give the Court a nearly absolute veto over actions at any level of government due to the difficulty of amending the Constitution. The rigidity of the amendment process leaves the Court generally as the sole interpreter of the Constitution.

The Court also claims the authority to declare state constitutional provisions and state enactments unconstitutional. These powers of judicial review can be logically separated into actions declaring coordinate national branches unconstitutional and cases voiding actions of subordinate state governments. The power over state constitutions and state laws, although often controversial, can be justified by reference to Article VII of the US Constitution, which states that the Constitution and laws and treaties of the United States constitute the “supreme law of the land” regardless of anything in state laws to the contrary. No such explicit words exist to allow the Court to declare coordinate national branch actions unconstitutional, but such declarations of unconstitutionality have been made repeatedly.

Origins of Judicial Review

If the power of judicial review is not explicit in the Constitution, it is reasonable to ask how the Court can claim it. It is generally accepted that the earliest authoritative legal assertion of the Court’s power of judicial review occurred in the case of Marbury v. Madison (1803). In his opinion for the Court, Chief Justice John Marshall wrote that the Court’s power of judicial review was unquestioned. There was, in fact, a considerable justification for Marshall’s assertion. Most fundamentally, if the written Constitution were to have meaning, some authoritative way of interpreting it must have been intended by its Framers. Without some form of judicial review, there would be no way to police boundaries separating the branches of the national government or those separating the federal and state governments. Chaos might ensue if everyone interpreted the document individually. Judicial review is, thus, an element in enforcing the rule of law in the US system of government.

Marshall could also point to several precedents, which are also an aspect of common law. The old British Privy Council exercised judicial review in voiding acts of colonial legislatures, so the idea was not entirely alien to Anglo-Saxon law. Marshall himself would not have used such a controversial example because some of the reasons that led to American independence were concerns that the government in London had invalidated laws duly passed by the colonial legislatures.

Even more compelling were the eight documented instances before 1789 in which state courts invalidated acts of their own legislatures for violating their state's constitutions. Such an exercise of judicial review is strongly analogous to the Supreme Court's power to declare actions of branches of national government unconstitutional. Research by constitutional scholars and historians has established that at least twenty-five of the forty delegates to the 1787 Constitutional Convention favored some form of judicial review. Moreover, eight of the state conventions that afterward ratified the Constitution discussed and accepted judicial review as one of the principles.

Before Marbury v. Madison, in Hylton v. United States (1796), both parties, and the Court itself, acted as if the Court had the authority to declare law unconstitutional, even though the Court upheld the law in this case. In Calder v. Bull (1798), individual justices asserted the right of judicial review, but the use of seriatim opinions in that case kept their rulings from being authoritative. Thus, Marbury v. Madison remained the authoritative case in which the Court declared a duly enacted national law unconstitutional. The lack of effective opposition by the other branches reinforced the Court’s assertion of judicial review.

The Scope of Judicial Review

If some form of judicial review was justified, the kind and scope of judicial review were still in doubt, and here the Supreme Court’s power of judicial review has remained controversial. Notwithstanding the clear language of Article VI, even the Court’s exercise of judicial review over state enactments and actions has been controversial. Early in US history, Presidents Thomas Jefferson and James Madison and their supporters claimed state legislatures could interpose their own interpretation of the Constitution over the Court’s interpretation. Throughout US history in various forms, state authorities objected, particularly when state constitutional provisions were overturned.

Even in the late twentieth century, state authorities and their supporters objected when the Court invalidated state constitutional provisions on reapportionment or a wide range of segregation provisions in state constitutions relating to public education and many other matters. However, despite political criticism, the Court’s authority to use judicial review to invalidate state laws withstood the test of time. The Court has been willing to declare thousands of such state provisions and enactments invalid.

The Court has exercised the greatest care in using judicial review in the highly controversial arena of invalidating national legislation or other actions of national government. Because of a lack of explicit authority in the Constitution itself, the Court has maintained this part of judicial review only by exercising self-restraint.

Still the Court’s restraint in striking down actions of other branches of national government has not been sufficient to avoid controversy. Indeed, the entire controversy over judicial activism versus self-restraint has to do with the exercise of judicial review. If the Court had been completely self-restrained, it would never have declared any action of national government to be unconstitutional. Neither the controversy nor this significant form of judicial review would exist. This might well have led to criticism that the Court failed to do its job as guardian of the Constitution. Some controversy over action is inherent in any power of judicial review over other national branches.

Some Controversies

The issue of judicial activism versus restraint does not fall clearly along liberal and conservative lines. Political liberals tend to become more active on some subjects and more restrained on others. Conservatives, who are normally expected to support judicial restraint, have occasionally acted as activists on certain issues throughout US history. Other controversies have flowed from the Court’s exercise of judicial review. The debate over the extent to which due process should be considered substantive or procedural directly bears on the issue of judicial review. This issue mixes with the question of judicial activism and self-restraint, but it is also a subject of judicial review.

After the Civil War, with the addition of the Thirteenth, Fourteenth, and Fifteenth Amendments, other controversies arose over the Court’s exercise of judicial review. The Fourteenth Amendment’s promise of “due process” and “equal protection” raised particularly important questions as to the degree to which other sections of the Constitution, such as the Bill of Rights, applied to the states as well as the federal government. The question of total or selective incorporation of the Bill of Rights and its application to the states turned partly on the question of judicial review.

Significant policy issues have fallen within the controversial purview of judicial review. For a long period, the question was whether the Court could exercise judicial review by striking down state and federal economic regulations. Using either the Contract Clause for the states or the Commerce Clause for the federal government, the Court expanded its own power of judicial review to the point that some feared it might become a board of economists determining the future of all economic regulations. Arguably, the Court was expanding the scope of judicial review dramatically by these decisions. Although the Court substantially abandoned its interference with economic regulations by the 1930s, it expanded its judicial review of other areas, such as civil liberties and rights, creating extensive controversy over the last two-thirds of the twentieth century.

The Court’s judicial review power is also inherent in the controversy over the scope of the federal government. When Congress and the president expanded the federal government’s power into areas previously belonging to the states and individuals, that expansion fell within the purview of the Court’s judicial review power. The Court’s judicial review power generally parallels the growth of the power of the federal government.

This expansion of judicial authority can be unsettling. Nonetheless, the Court’s power of judicial review has become fundamental to the rule of law in American democracy. One principle of the rule of law is that law should be knowable and predictable. From this, the Court has derived the principle that enactment should not be overbroad or vague and, therefore, unpredictable. Although the Court has exercised judicial review in declaring some laws void for vagueness, the Court’s judicial restraint has kept it from striking a whole range of increasingly vague enactments.

Closely related and still more controversial is the issue of whether the Court should strike down Congress’s vague delegations of lawmaking power to bureaucratic agencies. If the power of judicial review were said to be definitive, it would seem that the Court could easily declare that Congress improperly delegated the fundamental legislative power in violation of Article I of the US Constitution. When the Court took this position in the 1930s by invalidating Congress’s New Deal enactments, it provoked a strong controversy. President Franklin D. Roosevelt threatened to flood the Court with new members who would force it to abandon judicial review in this arena. The Roosevelt administration ultimately backed away from this constitutional exercise of its power for political reasons.

Faced with Roosevelt’s 1937 Court-packing plan, the Court withdrew from the confrontation without explicitly overturning its decisions. The Court simply stopped exercising judicial review over vague delegations of power by Congress. As a result, the number of vague delegations of power to administrative agencies increased. The absence of the Court’s exercise of judicial review is thought by some to be a major weakness in the system.

Another aspect of judicial review is the difference between the Court when it acts as a statutory as opposed to constitutional interpreter. When the Court interprets statutes said to be at variance with the Constitution, it is authoritative unless the Constitution is amended, which is a difficult task. The Court has generally, but not unanimously, agreed to exercise this power with great care. The 1973 Roe v. Wade abortion decision is a prime example of how controversial this power remains.

In June 2022, in Dobbs v. Jackson, the Roberts Court exercised what some described as the most impactful example of judicial review in the twenty-first century—overturning Roe v. Wade. In its legal argument, the Court refuted the concept of abortion as a constitutionally protected right. In writing the majority opinion, Justice Samuel Alito asserted the Constitution made no specific mention of abortion, nor was it protected in any other constitutional provision. The issue was then returned to the states for each to determine its legality. With a 6-3 conservative majority, this Court appeared motivated to also exercise judicial review in other cases that were previously considered settled law. Critics argued that the Roberts Court discarded the principle of employing great care in its decision-making. Its aggressiveness in employing judicial review can result in decisions that are at odds with the sentiments of the majority of Americans. Not only does this not diminish the controversy surrounding the previous decision, but for many Americans, it led to a decline in the Court's credibility as an institution.

When the Court uses judicial review to interpret statutes passed by Congress, there is an easier check on its power because Congress may presumably amend the statute and repair an interpretation placed on the statutes by the Court. The Court has exercised greater freedom in applying judicial review to statutory interpretation, aware that unintended consequences can be more readily remedied through legislative amendment. Still, this area is another example of the controversy that flows from the power of judicial review.

Limits on Power

In principle, the Court’s power is not absolute. The Court can be overturned by amendment. Such actions have occurred, but because of the difficult amending process, they are rare. At various times in its existence, the Court rendered decisions with which most Americans disagreed but were unable to pass a corrective constitutional amendment, through either Congress or the states.

Congress could exercise restraint on the Court by reducing its jurisdiction. However, the prestige of the Court and fears of political interference with the Court’s power by Congress and the president have led to great restraint on the part of coordinate branches of the government. The jurisdiction of the Court has withstood attacks by Congress and the president in this area.

A still more dramatic restraint flows from Congress’s authority to determine how many justices sit on the Court. Congress and the president have the power to determine the total number of justices by ordinary legislative enactment. This power could be significant because if the Court rendered a controversial decision by a five-to-four margin, the addition of just two new justices could potentially reverse that decision, assuming there were no other changes of mind or members. Nonetheless, the experience of Roosevelt’s administration in attempting to pack the Supreme Court by adding justices demonstrated that this is a politically difficult step to take.

An International Perspective

The Court’s important and controversial power of judicial review is a significant contribution of the US political system to the global system of governance. After World War II, concerns arose that democracy, defined as pure majority rule, had led to totalitarian governments. Because many European governments came to view the United States’ protection of minority rights along with majority rule as cardinal principles of democracy, constitutions and authoritative courts to interpret them became more popular. Starting with their immediate post-World War II constitutions, Germany, Japan, and Italy created constitutional courts with the power to declare ordinary laws unconstitutional. That is to say, these courts gained the power of judicial review. Subsequently, France, Ireland, and Israel added analogous constitutional courts.

Following the American example, rather than that of Great Britain and Canada, South Africa established its own courts to interpret its governmental charters. The creation of the European Union required a court to interpret the provisions of the charters or treaties that founded that union, and therefore, the European Court of Justice was established. The European Convention on Human Rights led to the creation of the European Court of Human Rights.

In the wake of the collapse of the Soviet Union and the satellite countries in Europe, there was a call for the rule of law in those countries. In many respects, the rule of law is best protected by a written constitution and a court of last resort with the authority to declare ordinary enactments and actions of governments to be at variance with that constitution and therefore unconstitutional. Several countries wrote constitutions and established courts to interpret them. In some sense, the power of judicial review may be said to be a more important contribution to government than the creation of legislatures or other democratic institutions.

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