What Is Judicial Review?

John Marshall, Chief Justice of the Supreme Court
John Marshall, Chief Justice of the Supreme Court. Public Domain/Virginia Memory

Definition

Judicial Review is the power of the US Supreme Court to review laws and actions from Congress and the President to determine whether they are constitutional. This is part of the checks and balances that the three branches of the federal government use in order to limit each other and ensure a balance of power.

Marbury vs. Madison and Judicial Review

The US Constitution did not specifically provide the judicial branch with the power of judicial review.

However, an issue arose when Thomas Jefferson's Secretary of State, James Madison, would not deliver commissions to judges who were appointed during the last days of John Adam's term in office. They could not take their position without the commission being delivered. One of those judges, Wiliam Marbury, took the issue before the Supreme Court in the landmark case, Marbury v. Madison. He asked the Supreme Court to issue a writ ordering the commission be delivered based on the Judiciary Act of 1789. However, John Marshall, Chief Justice of the Supreme Court ruled that the portion of the Judiciary Act of 1789 allowing for the Writ of Mandamus was unconstitutional. 

This action established the precedent of Judicial Branch of the government to declare a law unconstitutional. This decision was key in helping to place the Judicial Branch on a more even footing with the Legislative Branch and the Executive Branch.

 

Expansion of Judicial Review

Over the years, the US Supreme Court has made a number of rulings that have struck down laws and executive actions as unconstitutional. In fact, they have been able to expand their powers of judicial review. For example, by 1821 their power was expanded to review state criminal court cases in Cohens v. Virginia.

In Cooper v. Aaron in 1958, the Supreme Court expanded the power so that it could deem any action by any branch of a state's government to be unconstitutional. 

Examples of Judicial Review in Practice

Many hundreds of cases have been struck down using the power of judicial review. Following are just a few of key court cases that made previous laws unconstitutional: 

  • Roe v. Wade (1973) - The Supreme Court stated that laws that made abortion illegal were unconstitutional. 
  • Loving v. Virginia (1967) - Laws against interracial marriage were struck down. 
  • Citizens United v. Federal Election Commission (2010) - Laws that restricted spending by corporations on federal election advertising were struck down. 
  • Obergefell v. Hodges (2015) - Laws that did not allow same-sex marriage were found unconstitutional based on the fourteenth amendment.