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Judicial review refers to the power of courts to interpret the law and overturn any legislative or executive actions that are inconsistent with the law.^[1]

Background

U.S. Constitution

The constitutional basis for judicial review can be found in Articles III and VI.

Article III, Section 1:"The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office."

Article III, Section 2: “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.”

“In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”

Article VI:“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Although the phrase "judicial review" does not appear in the Constitution, these sections nonetheless vest the judicial power in the Supreme Court, extend the judicial power to all cases arising under the Constitution and the laws of the United States, and declare judges bound to the Constitution rather than to contrary laws.

Federalist Papers

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Alexander Hamilton, writing as Publius in Federalist Paper # 78, explained the need for judicial review:

Because of the courts’ duty to overturn unconstitutional laws, "the interpretation of the laws is the proper and peculiar province of the courts."

Hamilton concluded that judicial review would protect "the rights of the Constitution, and of individuals"—that is, the proper rights of each branch and level of government, and the rights of the people.

Legal precedents

InMarbury v. Madison (1803), the Supreme Court held that "a legislative act contrary to the constitution is not law." Since "the judicial power of the United States is extended to all cases arising under the constitution," it is the Supreme Court’s responsibility to declare as void all laws explicitly conflicting with it.^[4]Marbury therefore formalized the Court’s power of judicial review, a power reaffirmed in numerous cases.

InCooper v. Aaron (1958), a follow-up case to theBrown v. Board of Education (1954) desegregation case, the Court proclaimed that the power of judicial review also implies judicial supremacy. The Court declared that "the federal judiciary is supreme in the exposition of the law of the Constitution."^[5]

Since the 1950s, the Supreme Court has overturned an increasing number of statutes. The Marshall Court overturned only one federal statute, while the Warren Court overturned 25, the Burger Court 34, and the Rehnquist Court 38.^[6]

Principles of judicial review

Thearbitrary-or-capricious test is a legalstandard of review used by judges to assess the actions of administrative agencies. It was originally defined in a provision of the 1946Administrative Procedure Act, which instructs courts reviewing agency actions to invalidate any that they find to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." The test is most frequently employed to assess the factual basis of an agency'srulemaking, especiallyinformal rulemakings.^{[7][8][9][10]}

Deference is a principle of judicial review. In the context of administrative law, deference applies when a federal court yields to an agency's interpretation of either a statute that Congress instructed the agency to administer or a regulation promulgated by the agency. TheU.S. Supreme Court has developed several forms of deference in reviewing agency actions, includingChevron deference,Skidmore deference, andAuer deference.^[11][12]

Support and opposition

Despite the fact that Federalist # 78 referred to the judiciary as "the least dangerous branch," Alexis de Tocqueville argued that "a more immense judicial power has never been constituted in any people."^[13] Debates over the proper extent of judicial review are central to any debate over U.S. Supreme Court power.

Critics have alleged that, at various points in history, the Supreme Court has distorted the concept of judicial review in order to usurp the legislature’s policymaking role. For instance, in the wake of theDred Scott v. Sanford (1857) decision, President Abraham Lincoln said, " if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers."^[14]

In the twentieth century, scholar and federal judge Robert Bork criticized Supreme Court decisions such asLochner v. New York (1905). InLochner the Supreme Court struck a law limiting bakers’ working hours, citing a supposed ‘liberty of contract’ implied by the due process clause of the Fourteenth Amendment. Bork criticizedGriswold v. Connecticut (1965) on similar grounds, in which the Court struck down anti-contraception laws for violating a constitutional "right to privacy"—a phrase that appears nowhere in the Constitution.^[15]

Supreme Court Justice Antonin Scalia, in his dissent to the caseUnited States v. Windsor (2013), argued that judicial review should only be a limited and incidental power of the Supreme Court:

However, some scholars and justices have defended a broader interpretation of judicial review. John Hart Ely, for instance, argued that since some constitutional clauses are open-ended and indeterminate, courts must interpret the document according to "broad constitutional themes" such as political participation and protection of minority rights.^[17] Ely believed that the Supreme Court should strike any law that contravenes not just the Constitution's explicit text but also its broader goals.

See also

• Judiciary Act of 1801
• Marbury et al. v. Madison
• Brown v. Board of Education
• Endangered Species Act and judicial review
• Federalism
• The Federalist Papers

Footnotes