by Eric Wood
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The power that lets courts strike down a law as unconstitutional doesn’t appear anywhere in the Constitution’s actual text - the Supreme Court established it itself, in a single 1803 case, and it has been treated as settled law ever since.
Marbury v. Madison, and where the power actually comes from
Marbury v. Madison (1803) arose from a fairly minor political dispute over a last-minute judicial appointment, but Chief Justice John Marshall’s opinion did something far larger than resolve that specific dispute: it held that the Supreme Court has the authority to review acts of Congress and declare them void if they conflict with the Constitution. Marshall’s reasoning was that the Constitution is the “supreme Law of the Land,” that courts are obligated to apply the law to the cases before them, and that when an ordinary statute conflicts with the Constitution itself, courts must follow the Constitution instead.
A power that expanded well beyond that first case
Judicial review has since expanded to cover not just acts of Congress, but executive actions and state laws as well - any government action can, in principle, be challenged as unconstitutional and reviewed by courts. This makes the federal judiciary a genuinely coequal check on the other two branches, even though the specific power enabling that check was never explicitly written into the Constitution’s own text.
Worth knowing
Judicial review isn’t unique to the United States, but the American approach - any federal court can exercise it, in the context of resolving an actual case or controversy, rather than through a specialized constitutional court reviewing laws in the abstract - is distinctly American and has influenced how many other democracies structure their own systems since.
Why it still matters
Judicial review is the mechanism underneath nearly every major constitutional ruling this site covers - it’s the actual tool courts use whenever they strike down a law or executive action as unconstitutional, which is exactly why debates over how broadly or narrowly courts should exercise this power remain one of the most consistently contested questions in American law.
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The certiorari process, the Rule of Four, and why a circuit split is one of the most common reasons the Supreme Court agrees to take a case at all.
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Presidential nomination, Senate confirmation, and lifetime tenure - why Hamilton argued judicial independence required insulating judges from political pressure.
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District courts try cases, circuit courts review for legal error, and the Supreme Court hears only a small fraction of what's appealed to it - the three tiers and what each one actually does.
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Article III establishes only 'one supreme Court' directly - how Congress built the rest of the federal court system, and what each level actually does.
