Judicial review
Judicial review is a significant power within the U.S. federal and state judicial systems, allowing courts to interpret laws and determine their constitutionality. This authority, though not explicitly outlined in the Constitution, was established by the landmark 1803 Supreme Court case Marbury v. Madison, which positioned the judiciary as an equal branch alongside the legislative and executive branches. The process of appointing justices, especially to the Supreme Court where they serve for life, has led to concerns about the democratic nature of judicial review. Critics from both conservative and liberal perspectives fear that this power can be misused to challenge or overturn substantial social legislation, impacting issues like labor rights and reproductive freedoms. For instance, the 1973 decision in Roe v. Wade, which recognized a constitutional right to privacy regarding abortion, exemplifies concerns about judicial activism. In contrast, some view judicial review as a mechanism that encourages lawmakers to formulate legislation more carefully, knowing that their laws could be challenged in court. Overall, judicial review plays a critical and often contentious role in shaping the balance of power within the U.S. government.
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Judicial review
SIGNIFICANCE: The power of judicial review is a significant and controversial power of the U.S. federal and state judicial system. Although the power to create laws belongs to the legislative branch of government (and to the executive branch through the power of executive order), the courts, given their power of judicial review, have the final say in declaring what is the law.
The broad power of judicial review was not explicitly assigned to the judicial branch of government by the Constitutional Convention of 1787. Rather, its creation can be traced to the judicial branch itself—in particular, to the 1803 decision in Marbury v. Madison by the U.S. Supreme Court led by Chief Justice John Marshall . This decision opened the way for the judicial branch, in interpreting the law, to become at least as powerful as the legislative and executive branches.
Controversy over the principle of judicial review does not, however, stem from questions about its historical legitimacy, but rather from the processes by which justices acquire their positions in the courts. While many judges at the state level are elected to their positions, the justices of the U.S. Supreme Court are appointed to their positions for life. This causes many to worry that the power of judicial review, at least at the federal level, is undemocratic in its very nature, granting such power to the judicial branch that it threatens the balance of power among the three branches of government.
The concern that the principle of judicial review unduly extends the power of the courts and “politicizes” the power of the judiciary is shared by both conservatives and liberals alike. Liberals worry that in the hands of a conservative Supreme Court the power of judicial review could be used to overturn progressive social legislation, such as affirmative action laws. Around the turn of the twentieth century new laws creating more favorable working conditions for laborers were deemed invalid in the case of Lochner v. New York (1905) and other decisions. Conservatives worry that in the hands of a liberal Supreme Court the power of judicial review could be used by justices to promote social change. As an example of so-called judicial activism they point to Roe v. Wade (1973), which, on the basis of an implicit constitutional right to privacy, overturned a statute making abortions illegal in the state of Texas. In 2022, a conservative-dominated Supreme Court overturned Roe v. Wade, throwing the decision of whether abortion should be legalized back to the states. Controversy over the power of judicial review aside, the existence of this power exerts an influence over lawmakers that many would claim is beneficial, as the knowledge that laws are subject to judicial review can lead to greater care and conscientiousness on the part of lawmakers in crafting legislation.
Bibliography
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Mulvihill, Geoff. "The Supreme Court Overturned Roe v. Wade in 2022. Here’s the State of Abortion Rights Now in the US." Associated Press, 21 June 2024, apnews.com/article/roe-wade-dobbs-anniversary-abortion-states-cadff0d905d1c4d7b9825c8406aadffb. Accessed 5 July 2024.
Nelson, William E. Marbury v. Madison: The Origins and Legacy of Judicial Review. Lawrence: UP of Kansas, 2006. Print.