Judicial Review: the Power of Courts in the American System

Historical Foundations of Judicial Review

The doctrine of judicial review is not explicitly mentioned in the U.S. Constitution. Its roots, however, stretch back to English legal traditions and colonial practices. Early American courts occasionally voided state laws that conflicted with state constitutions, but the power to strike down federal statutes remained untested until the early republic.

The pivotal case that cemented judicial review at the federal level was Marbury v. Madison (1803). Decided by Chief Justice John Marshall, the case arose from the political turmoil of the 1800 presidential election. William Marbury, a midnight appointee of outgoing President John Adams, sued Secretary of State James Madison for failing to deliver his commission as a justice of the peace. Marshall's opinion masterfully avoided a direct confrontation with the executive branch by ruling that the law under which Marbury sued—Section 13 of the Judiciary Act of 1789—was itself unconstitutional because it expanded the Supreme Court’s original jurisdiction beyond what the Constitution allowed. In doing so, Marshall established three enduring principles:

The Constitution is the supreme law of the land, binding on all branches of government.
The judiciary has the authority to interpret the Constitution and to declare acts of Congress or the executive void when they conflict with it.
The power of judicial review is an inherent function of the courts, essential to maintaining constitutional supremacy.

Before Marbury, several state courts had already exercised judicial review over state legislation. For instance, in Commonwealth v. Caton (1782), Virginia’ highest court hinted at the power to invalidate laws. But the Supreme Court’s definitive assertion in Marbury gave the doctrine national force and set the stage for two centuries of constitutional jurisprudence.

Pre-Marbury Precedents and Debates

The idea that courts could nullify unjust or unconstitutional laws was debated at the Constitutional Convention of 1787. Alexander Hamilton argued in Federalist No. 78 that the judiciary would be the “least dangerous” branch because it had “no influence over either the sword or the purse.” Hamilton envisioned the courts as the guardian of the Constitution, noting that “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.” This vision did not go unchallenged. Anti-Federalists feared an unelected judiciary could override popular will. The debate over the scope of judicial review thus began even before the nation’s founding.

How Judicial Review Works in Practice

Judicial review is not a standalone power exercised at will by every court. It operates through the ordinary processes of litigation. A case must be properly brought—a party must have standing, the issue must be ripe, and there must be an actual controversy. Courts apply specific methodologies when reviewing the constitutionality of laws or actions.

Standards of Review

Depending on the nature of the law or action, courts apply different levels of scrutiny:

Rational Basis Review: The most deferential standard. The law is presumed constitutional, and the challenger must show that the law bears no rational relationship to a legitimate government interest. This applies to most economic and social legislation.
Intermediate Scrutiny: Used for classifications based on gender or illegitimacy. The law must be substantially related to an important government interest.
Strict Scrutiny: The most rigorous standard. Applied to laws that burden fundamental rights (like free speech or voting) or classify based on race, religion, or national origin. The government must prove the law serves a compelling interest and is narrowly tailored to achieve it.

These standards guide judges in determining whether a law violates the Constitution. They are not perfect, but they provide a framework for consistent decision-making.

The Process of Constitutional Adjudication

When a federal court hears a constitutional challenge, the process typically unfolds as follows:

Filing and Pleadings: The plaintiff must allege a specific injury caused by a law or government action that violates a constitutional right.
Discovery and Evidence: In some cases, evidence about the law’s purpose or impact is gathered. For facial challenges, the court looks at the law’s text; for as-applied challenges, it examines the specific facts.
Motions and Briefing: Parties submit legal arguments citing constitutional text, precedent, and historical context.
Oral Argument: Lawyers present their case before judges, who ask questions probing the logic and implications of each side.
Deliberation and Opinion: Judges meet to discuss the case. The majority opinion—or plurality—explains the reasoning. Concurring and dissenting opinions provide alternative views.
Remedy: If a law is struck down, the court typically declares it void and unenforceable. In some cases, the court may issue an injunction against enforcement or reform the law through a “severability” analysis.

It is important to note that judicial review is not limited to the Supreme Court. Lower federal courts regularly conduct constitutional review, and their decisions are subject to appeal. Only the Supreme Court’s rulings are final unless the Constitution is amended or the Court later overrules itself.

Landmark Decisions That Shaped America

Judicial review has been the engine of transformative social and legal change. Some cases have expanded individual rights, others have limited government overreach, and a few have been widely criticized as overreaching.

Foundational Cases Beyond Marbury

McCulloch v. Maryland (1819): The Court upheld the constitutionality of the Second Bank of the United States, establishing that Congress has implied powers beyond those explicitly listed (the “necessary and proper” clause). The case also reinforced federal supremacy over state action.
Gibbons v. Ogden (1824): Broadly interpreted Congress’s power to regulate interstate commerce, laying the groundwork for federal regulatory authority over the economy.
Dred Scott v. Sandford (1857): A disastrous use of judicial review. Chief Justice Roger Taney declared that African Americans were not citizens and that Congress could not prohibit slavery in the territories. The decision inflamed national tensions and was effectively overturned by the Reconstruction Amendments.

Civil Rights and Liberties

Brown v. Board of Education (1954): Unanimously struck down racial segregation in public schools, overruling the “separate but equal” doctrine of Plessy v. Ferguson (1896). The ruling used sociological evidence to show that segregation inherently denied equal protection.
Gideon v. Wainwright (1963): Held that the Sixth Amendment requires states to provide counsel to criminal defendants who cannot afford an attorney. This reshaped the criminal justice system.
Miranda v. Arizona (1966): Required police to inform suspects of their rights to remain silent and to counsel. The “Miranda warnings” have become a staple of police procedure.
Roe v. Wade (1973): Recognized a constitutional right to abortion under the Due Process Clause of the Fourteenth Amendment. The case sparked ongoing political and legal debates. (Note: Roe was overruled by Dobbs v. Jackson Women's Health Organization in 2022, returning the issue to the states.)
Obergefell v. Hodges (2015): Declared that same-sex marriage is a fundamental right under the Fourteenth Amendment, requiring all states to issue marriage licenses to same-sex couples.

Separation of Powers and Federalism

United States v. Nixon (1974): Unanimously rejected President Nixon’s claim of absolute executive privilege, forcing him to release Watergate tapes. The decision affirmed that no person, not even the president, is above the law.
Immigration and Naturalization Service v. Chadha (1983): Struck down the legislative veto, a tool Congress used to overturn executive actions. The Court held that the veto violated the bicameralism and presentment requirements of Article I.
National Federation of Independent Business v. Sebelius (2012): Upheld the individual mandate of the Affordable Care Act as a valid exercise of Congress’s taxing power, but limited Congress’s authority under the Commerce Clause and Spending Clause concerning Medicaid expansion.

Criticisms and Contemporary Challenges

Judicial review attracts persistent criticism from across the political spectrum. The core objections can be grouped into three categories: democratic accountability, judicial activism, and legitimacy.

The “Countermajoritarian Difficulty”

First articulated by legal scholar Alexander Bickel, this critique holds that judicial review allows unelected judges to overturn laws enacted by democratically elected representatives. In a democracy, why should nine lawyers in robes have the final say on controversial moral and political questions? Proponents respond that the Constitution itself is a majoritarian document amended by supermajorities, and that courts protect minority rights from transient majority passions. Still, the tension remains unresolved.

Judicial Activism vs. Restraint

Critics often accuse courts of “judicial activism” when they strike down laws that reflect popular will or when they create new constitutional rights. Conversely, “judicial restraint” is praised when courts defer to legislatures—or condemned when they fail to protect vulnerable groups. The terms are often used polemically. A more neutral framing is to ask whether a court is faithful to the constitutional text, structure, and precedent, or whether it is imposing its own policy preferences. Landmark cases like Lochner v. New York (1905), which struck down maximum-hour laws, are widely viewed as activist; West Coast Hotel Co. v. Parrish (1937) overruled Lochner and is seen as a shift toward restraint. The debate over originalism and living constitutionalism continues to divide scholars and justices.

Political Influence and Confirmation Battles

Because judges are appointed (federal judges for life), the confirmation process has become highly politicized. Ideological litmus tests and partisan jockeying over vacancies have intensified, especially for the Supreme Court. The 2016 refusal to confirm Merrick Garland and the rapid confirmation of Amy Coney Barrett in 2020 illustrate how the power of judicial review is shaped by electoral outcomes. Critics argue that this undermines public trust in the judiciary’s impartiality. Yet others note that judicial review is precisely designed to check political branches, and some level of political influence in appointments is inevitable.

Compliance and Resistance

Even when courts speak, their rulings are not always obeyed. The doctrine of judicial supremacy—that the Supreme Court’s interpretation of the Constitution binds all other branches—has been contested at various points. President Andrew Jackson reportedly said after Worcester v. Georgia (1832), “John Marshall has made his decision; now let him enforce it.” In the 1950s and 1960s, some states resisted desegregation orders. More recently, debates over state nullification of federal laws and the “independent state legislature theory” have tested the limits of judicial authority. The Court itself has acknowledged that its legitimacy depends on “the public’s willingness to accept its decisions as principled and not result-oriented” (as Justice Kennedy wrote in Planned Parenthood v. Casey, 1992).

The Future of Judicial Review in a Changing America

The coming decades will present novel challenges for judicial review. Technology, globalization, and shifting social norms will push courts to apply old constitutional text to new realities.

Technology and Privacy

Digital surveillance, social media, and artificial intelligence raise questions about the Fourth Amendment’s prohibition on unreasonable searches and seizures. The Supreme Court has already begun adapting, as in Carpenter v. United States (2018), which held that the government generally needs a warrant to access cellphone location records. Future cases may address government use of facial recognition, data mining by private companies, and algorithm-generated content moderation.

Healthcare and Life Issues

Following Dobbs, the constitutional landscape of abortion is fragmented. State courts may now interpret their own constitutions to protect reproductive rights, and federal courts will face questions about interstate travel, medication abortion, and emergency medical care. Meanwhile, the Affordable Care Act may face renewed challenges, and new debates over assisted suicide, genetic engineering, and public health mandates will test the limits of due process and equal protection.

Social movements such as Black Lives Matter and #MeToo have called for structural reforms. Courts may be asked to adjudicate claims of systemic racism in policing, housing, and education. The Constitution’s Equal Protection Clause and Voting Rights Act will remain central battlegrounds. Challenges to gerrymandering, partisan election rules, and campaign finance laws will continue to shape the political process.

The Global Dimension

American judicial review increasingly interacts with international law and the rulings of foreign courts. Some justices cite foreign precedents in their opinions (e.g., in Roper v. Simmons (2005), which banned the juvenile death penalty), while others reject such reliance. As global trade, human rights treaties, and cross-border litigation grow, U.S. courts will have to navigate tensions between national sovereignty and international norms.

Conclusion: The Enduring Significance of Judicial Review

Judicial review is neither a perfect tool nor an unlimited power. It is a constitutional mechanism that requires constant calibration. Its legitimacy rests on the quality of judicial reasoning, the public’s confidence in the courts, and the willingness of other branches to comply with rulings. When functioning well, judicial review protects individual liberty, maintains the separation of powers, and ensures that no government actor can exceed constitutional bounds. When it falters—as in Dred Scott or Korematsu v. United States (1944), which upheld Japanese internment—the consequences can be devastating.

As the United States confronts new challenges, the power of courts to interpret the Constitution will remain a vital—and contested—feature of democratic governance. Understanding judicial review is essential for anyone who cares about the rule of law and the preservation of constitutional rights.