What Is Judicial Review?

Since 1789, the Senate has not confirmed about one-fourth of presidential nominations to the
Supreme Court. In 2005, Harriet Miers, a lawyer working for President Bush, requested that the
president withdraw his nomination of her to the Supreme Court amid Senate criticism, including
that Miers had never served as a judge. Most Americans either are unfamiliar with judicial
appointments or have no opinion on them. So why does the Senate care so much about who
the president nominates?

The reason why it matters who serves as a federal judge is not only that they serve for life, but
more importantly because they have the power of judicial review the power to review and cancel
laws or acts of government if determined to be unconstitutional. Judicial review is the power of
federal courts to review laws of Congress and acts of the executive branch in light of the
Constitution, with the possibility that they will rule them to be unconstitutional not allowed by or
against the ideas and principles of the Constitution. By making such a judgment, the court is
declaring the law or act to be void and unenforceablecitizens are not bound to and executive
agencies may not enforce the law or act.

This is a powerful check of the federal judiciary on the other branches of government, as you
may imagine, since this power can undo public policy. The Supreme Court can check the state
and local governments through this power as well. While the main job of the judicial branch is to
interpret law, the Constitution does not mention judicial review directly.

Federalist Paper No. 78

The courts were designed to be an intermediate body between the people and the
legislature, in order, among other things, to keep the latter within the limits assigned to their
authority.
Alexander Hamilton, Federalist No. 78
In Federalist No.78, Alexander Hamilton described the role and functions of the judicial branch,
including the power of judicial review. In this quote, he names the courts as protectors of the
people and a check on the legislative branch because they can overrule laws that are outside
the scope of their powers under the Constitution. While newspaper essays published during the
Constitution's ratification debates do not have the force of law, the words of Hamilton and others
had a powerful effect on increasing the understanding of the intentions of the framers.

Federalist Paper No. 78

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. Where the
will of the legislature, declared in its statutes, stands in opposition to that of the people, declared
in the Constitution, the judges ought to be governed by the latter rather than the former. They
ought to regulate their decisions by the fundamental laws, rather than by those which are not
fundamental.
Alexander Hamilton, Federalist No. 78
In this quote, Hamilton explains that the Constitution is the "fundamental law" of the United
States, representing the will of the people, and therefore superior in authority to any law passed
by a legislative body that conflicts with it. He explains that when judges face a conflict between
a law and the Constitution, they must base decisions on the Constitution.
Marbury v. Madison
In 1803, the Supreme Court decided the case of Marbury v. Madison. The background of
the case:
President John Adams appointed William Marbury to a federal position as
he prepared to leave office.
When President Thomas Jefferson took over, he ordered his Secretary of
State James Madison not to deliver the commission required for Marbury to take
office. Marbury was from an opposing political party.
Marbury then filed a lawsuit for the court to force Madison to deliver the
commission.

Chief Justice John Marshall delivered the court opinion that neither the president nor his staff
could withhold the commission, that to do so would violate federal law.
This case may seem insignificant today, but it set an important precedent. In Marbury v.
Madison, the justices determined that the Supreme Court could decide whether an act or law is
a violation of the Constitution. The decision also made clear that one role of the Supreme Court
is to clarify the meaning of laws and have the final say on interpretations of the law and
Constitution.

While most scholars agree that this case established the power of judicial review, they do not
agree on the scope of that power. The Constitution is not specific on the powers of the Supreme
Court. So there are questions such as whether the Supreme Court can declare any law, statute,
or act as unconstitutional or whether it is limited to certain areas. Chief Justice Marshall had a
strong role in shaping its role and powers through decisions such as Marbury v. Madison.

Chief Justice John Marshall

It is emphatically the province and duty of the judicial department to say what the law is.
A law repugnant to the Constitution is void.

Chief Justice John Marshall, Marbury v. Madison (1803)

The first part of this quote echoes Hamilton from Federalist No. 78. Chief Justice John Marshall
and his associate justices ruled in Marbury v. Madison that Madison's refusal to deliver was
illegal. However, the Supreme Court did not compel the appointment nor did it have the power
to do so.
The Court ruled that a portion of the law allowing Marbury to petition the Supreme Court, the
Judiciary Act of 1789, was unconstitutional because it expanded jurisdiction of the court beyond
areas described in Article III of the Constitution. Therefore, while the Supreme Court ruled it
illegal for Madison to withhold the appointments, it could not force him to deliver them because
according to the Constitution, the matter should never have come to the U.S. Supreme Court!
Do Judges Make Policy?
Though the Constitution did not design the courts to make policy, they can have that effect
through judicial decisions. When a federal court reinterprets a law or the Constitution in a major
way and applies it to a new situation or group of people, it can affect public policy. For example,
when the U.S. Supreme Court ruled that a federal income tax was unconstitutional, it rendered
laws of Congress related to income tax void, and the executive branch could no longer collect
them. Later, Congress passed the 16th Amendment to the Constitution, allowing the federal
government to create and collect an income tax directly from citizens. The court ruling led to
changes in policy.

Sometimes a court decides on a remedy a legal means of enforcing the rights of those favored
by a judicial decision that requires legislative or executive policy changes. A remedy is a court
action requiring payment of damages or fulfillment of some other type of obligation, perhaps
related to a right or a contract. For example, when the U.S. Supreme Court ruled that the
Medical School of the University of California at Davis admissions process unfairly rejected
Allan Bakke based on his race, the ruling forced the school to admit him, as a remedy.

The Supreme Court and other federal courts also can have the effect of making policy when
they interpret the meaning of a vague phrase in the Constitution or laws such as "equal
protection." The school mentioned above gave priority admission to certain students, including
minorities. The student had argued that the process actually violated his personal right to "equal
protection," since he fulfilled all the school's admissions criteria but was denied because lower-
performing students were prioritized ahead of him because he was white. Since the Supreme
Court agreed, not only was the student admitted, but the university and others around the
country began reviewing and changing their admissions policies to comply with the ruling.

How Do Judges Compare to Elected Officials?

Federal judges, like members of Congress and the president, exist in government to serve the
people. However, voters elect senators, representatives, and the president while the president
appoints federal judges with the Senate's approval. The framers of the Constitution set it up this
way because they wanted judges to make decisions based on the laws and Constitution, rather
than the will of the people, which can change from moment to moment. The rulings of judges set
precedentsPrecedent: a prior judicial decision used as an example to explain new ruling for a
similar situation for future cases and therefore have effects across great spans of time. The
decisions of legislators and executives can more easily be changed through the regular
policymaking process.
Though judges are not selected based on political party, a president will also nominate someone
he or she believes to have similar ideology. When the Senate conducts its confirmation
hearings, it will try to discern the nominee's views on interpretation of the Constitution and
various national issues. It will question potential judges on decisions they have made in
previous courts. The president and Senate are hoping to seat a judge who will support their
laws when faced with a case that challenges them.
Note that state governments determine their judge selection methods. They can vary between
states and over time through policy changes. Methods used include election by voters, election
by state legislature, and appointment by governor and confirmation by legislature as in the
federal system.

When there is a judge vacancy at the federal level, especially in the Supreme Court, it becomes
national news. In the district and appellate courts, a president will often nominate a person
recommended or preferred by the senators from that state, an act known as "senatorial
courtesy." While it may help improve the chances of confirming the nominee, some critics say it
blurs the lines between the executive and legislative branches in the important power of
selecting judges. For this reason and many others, some Americans argue that federal judges
should be elected and accountable responsible to somebody or for something to the people just
like other federal officials. Examine the details of the debate in this activity.

What Are the Checks on the Judiciary?

Besides appointments, the executive and legislative branches do have other checks on the
power of the federal judiciary. The Constitution gives Congress the power to determine the
organization and jurisdiction of the lower federal courts. It can impeach federal judges, although
that is only possible for very serious crimes; so Congress cannot use it simply because it does
not like a judge's decisions.

One other check is through regular policymaking. If the Supreme Court rules a law
unconstitutional, Congress could create and pass a new law on the same topic but alter it just
enough to avoid another judicial challenge. It might seek an amendment to the Constitution to
circumvent a judicial decision, as it did with the federal income tax. Another check is that while
the courts can issue orders that direct the legislative and judicial branches to act, it has no
power of enforcement. A famous example is the 1832 Supreme Court case Worcester v.
Georgia.

Image of the flow chart illustrating the system of checks and balances in the federal
government. Three boxes are shown labeled Executive Branch, Legislative Branch, and Judicial
Branch. The blue box at the top is labeled Executive Branch. Arrows point from the Executive
Branch to the Judicial Branch and to the Legislative branch, indicating the Executive Branch can
check the power of those branches. The light blue box on the lower left is labeled Judicial
Branch. Arrows point from the Judicial Branch to the Executive Branch and to the Legislative
Branch, indicating the Judicial Branch can check the power of those branches. The green box
on the lower right is labeled Legislative Branch. Arrows point from the Legislative Branch to the
Executive Branch and to the Judicial Branch, indicating Legislative Branch can check the power
of those branches.

In this case, the court ruled that the state of Georgia does not have jurisdiction over lands
granted to the Cherokee Nation by the federal government. The decision ruled a Georgia state
law unconstitutional that required non-Indians to have a special license to live or work in
Cherokee territory. The court required that Samuel Worcester, arrested under that law, be freed
from jail and his conviction overturned. Worcester was a supporter of Cherokee rights. President
Andrew Jackson, supporting the state of Georgia and its plans to remove Native Americans
from the state, is said to have declared, "John Marshall has made his decision. Now let him
enforce it." Georgia freed Worcester after several months and soon began the Cherokee
removal to Indian Territory (now the state of Oklahoma).

How Can Judicial Review Change Over Time?

Public opinion does have a sort of indirect check on the judiciary, though it is subtle compared to
other checks. Changing social values, such as views on civil rights, can influence judicial
interpretation. The cases brought to the Supreme Court reflect the concerns of the people and
issues yet to be resolved by the Constitution. In the early years of the Supreme Court, the great
question was determining the specific nature of the relationship between the federal and state
governments. Many rulings of the courts helped establish that relationship.

While judges are supposed to be independent, their personal ideology of government will also
influence interpretation of the Constitution's intent. The Supreme Court justices make a decision
by majority, so that is at least five out of nine justices in the current organization of the court. If
most of the justices are liberal, we could expect the court to favor more liberal interpretations
and decisions more often.

John Marshall
John Marshall served as Chief Justice of the Supreme Court from 1801 to 1835, the longest of
all Chief Justices. He wrote the decision for Marbury v. Madison, which affirmed the judicial
review power of the courts. Many of the decisions he and the court made during this time also
affirmed the supremacy of the federal government over the states, which made him unpopular
with many who still believed the state governments should remain sovereign. The idea of the
Supreme Court overruling a state supreme court decision was very controversial.

Examples of significant cases include the McCulloch v. Maryland case, preventing a state from
taxing the federal government or preventing it from running a bank. Another is the Gibbons v.
Ogden case, which established the federal government as the only entity with control over
interstate commerce.

Roger Taney (pronounced Taw-nee)

Roger Taney served as Supreme Court Chief Justice from 1836-1864, during the tumultuous
years of debate over slavery and the Civil War. In contrast to Marshall, Taney was a stronger
believer in states' rights even though he was still committed to the united country. His most
famous decision was in the case of Dred Scott v. Sandford, where he and the court ruled that
African Americans were not citizens of the United States and therefore could not petition the
courts.

Dred Scott, an enslaved man, had tried to assert that since his owner brought him into free
territory he should be free by the laws of that land. The ruling affirmed that no matter where a
slave travels, his or her status does not change. The ruling enraged many, especially in the
North, and helped stoke the fires that caused the Civil War.

Earl Warren
Earl Warren served as Supreme Court Chief Justice from 1953-1969. The "Warren Court" is
famous for many liberal rulings that expanded civil rights and federal power, reflecting changes
in the expectations and values of the American people from previous decades. One famous
example is Brown v. Board of Education (1954), where segregation in public schools was ruled
unconstitutional, contradicting a prior court ruling that segregation was acceptable under the
Constitution. The Court made many decisions related to the Bill of Rights, including the
protection of symbolic speech as free speech in Tinker v. Des Moines, and the rights of people
accused of crimes in Miranda v. Arizona and Gideon v. Wainwright.

The Miranda case ruled that those accused of crimes must be informed of their rights. Per the
Gideon case, people accused of crimes have the right of legal representation and states must
provide it for those who cannot pay for a lawyer themselves.