Judicial Review

What Judicial Review Means

When a court exercises judicial review, it compares a government action against a higher law and asks whether the two conflict. The action might be a statute passed by Congress, an executive order, an agency rule, a state law, or a decision by a local official. If the court finds a conflict, the higher law wins — the Constitution over a statute, a federal statute over a conflicting agency rule, federal law over conflicting state law.

Judicial review can cut either way. Courts uphold government action far more often than they strike it down, and a decision upholding a law is just as much an exercise of the power as one invalidating it. In McCulloch v. Maryland (1819), the Court used it to confirm broad congressional power.

Marbury v. Madison: Where the Power Comes From

Marbury v. Madison (1803) began as a minor fight over a last-minute judicial appointment that the incoming Jefferson administration refused to deliver. Chief Justice John Marshall used it to settle a much larger question. The Constitution, he reasoned, is the “supreme Law of the Land”; courts must decide what law applies to the case in front of them; so when an ordinary statute conflicts with the Constitution, a court must follow the Constitution and set the statute aside.

The move was strategically brilliant. Marshall ruled that the part of a federal law Marbury relied on was unconstitutional — so the Court claimed an enormous power while handing the administration the immediate win, leaving it nothing to resist.

Reviewing Acts of Congress

When a law is challenged, courts first try to read it in a way that avoids a constitutional problem. Only when that isn’t possible will a court hold the law, or part of it, unconstitutional — and often it strikes only the offending provision and leaves the rest standing (called severability). The Supreme Court has invalidated federal statutes relatively rarely across its history, but those decisions include some of its most consequential — on campaign finance, voting rights, commerce power, and more.

A ruling that Congress misread its own statute is different from a ruling that the statute is unconstitutional. The first can be fixed by Congress simply rewriting the law; the second can be undone only by a constitutional amendment or a later change in the Court’s own view.

Reviewing Executive Action

Courts also decide whether Presidents and federal agencies have stayed within the authority the Constitution and Congress gave them. Three frameworks come up again and again:

Courts are generally more deferential in foreign affairs and national security, a tradition traced to Curtiss-Wright (1936) and applied in Dames & Moore v. Regan (1981). For the executive side of these limits, see the Executive Branch.

Reviewing State Laws

The Constitution’s Supremacy Clause makes federal law override conflicting state law, and the Fourteenth Amendment applies most of the Bill of Rights to the states. Together they give federal courts a large role in reviewing state action — from school segregation to voting rules to criminal procedure. When Arkansas officials claimed they weren’t bound by Brown v. Board of Education, a unanimous Court answered in Cooper v. Aaron (1958) that they were. Federal courts also resolve preemption disputes over whether a state law intrudes on a field Congress controls, as in Arizona v. United States (2012).

What Limits Judicial Review

Courts can’t review a law just because someone dislikes it. Judicial review happens only inside a real case:

Checks on the Courts

Judicial review is a check on the other branches, but the courts are checked too. Separation of powers means the branches share and push against each other, not that any one of them rules alone.

That last point is Hamilton’s: the judiciary’s authority rests on the willingness of the other branches, and the public, to treat its judgments as binding. For how Congress uses its own tools, see the Congressional Branch.