Judicial Review: Courts Decide if Laws Are Constitutional

What does the judicial branch do? The judicial branch reviews laws, explains laws, resolves disputes, and decides if laws are constitutional (judicial review). The most important power is judicial review: the power to determine whether laws passed by Congress or actions taken by the President violate the Constitution. If a law is unconstitutional, courts can strike it down, preventing its enforcement.

Judicial review gives courts significant power to check the other branches. Congress may pass laws, but courts decide if those laws are constitutional. The President may take actions, but courts decide if those actions exceed presidential authority. This makes the judiciary a co-equal branch of government with substantial influence over American law and policy.

The Essential Facts

For the citizenship test, remember that the judicial branch reviews laws and decides if they are constitutional. This power is called judicial review.

Judicial review is not explicitly stated in the Constitution. The Supreme Court asserted this power in Marbury v. Madison (1803), one of the most important cases in American history. Chief Justice John Marshall wrote that courts must interpret the Constitution when deciding cases, and if a law conflicts with the Constitution, the Constitution prevails. This established judicial review as a fundamental judicial power.

The federal court system has three levels:

1. District Courts (trial courts): Where cases begin, evidence is presented, and initial decisions are made
2. Courts of Appeals (appellate courts): Review district court decisions, check for legal errors
3. Supreme Court: The highest court, has final say on constitutional interpretation

All these courts can exercise judicial review. If a district court finds a law unconstitutional, that decision can be appealed to higher courts. Ultimately, the Supreme Court’s interpretation of the Constitution is final.

How Judicial Review Works

Courts cannot simply declare laws unconstitutional on their own initiative. Judicial review requires an actual legal case or controversy. Someone must be harmed by a law and bring a lawsuit challenging it. Courts then decide whether the law violates the Constitution.

The process typically works like this:

1. Someone sues: A person or organization claims a law violates their constitutional rights. For example, someone arrested under a law might argue the law violates the First Amendment.

2. Trial court decides: A district court hears the case, reviews evidence and legal arguments, and rules on whether the law is constitutional.

3. Appeal: The losing side can appeal to a Court of Appeals, which reviews the lower court’s legal reasoning. The appeals court can affirm, reverse, or modify the decision.

4. Supreme Court review: Either party can petition the Supreme Court to review the case. The Supreme Court accepts only a small percentage of cases, choosing those involving important constitutional questions or conflicts between lower courts.

5. Supreme Court decides: The Supreme Court hears oral arguments, studies the law and Constitution, and issues a decision. If the Court finds the law unconstitutional, that law cannot be enforced. The Court’s interpretation of the Constitution becomes the final word.

Why Judicial Review Matters

Judicial review protects constitutional rights against government violations. If Congress passed a law banning criticism of the President, courts would strike it down as violating the First Amendment. If a state required forced confessions in criminal cases, courts would overturn convictions as violating the Fifth Amendment. Judicial review enforces constitutional limits on government power.

This power makes courts independent and powerful. Courts can overrule decisions by elected officials, striking down laws passed by Congress or actions taken by the President. This counter-majoritarian feature of judicial review means minorities can win in court what they cannot win politically. Even if 90% of people support a law, if it violates the Constitution, courts will strike it down.

Judicial review has shaped American history profoundly. Brown v. Board of Education (1954) declared school segregation unconstitutional, driving the civil rights movement. Roe v. Wade (1973) recognized a constitutional right to abortion, generating decades of controversy. Citizens United v. FEC (2010) struck down campaign finance restrictions on free speech grounds, transforming American politics. These decisions show how judicial review influences law and society.

Critics argue judicial review gives unelected judges too much power. Federal judges have lifetime tenure and cannot be removed except through impeachment. When nine Supreme Court justices strike down laws passed by Congress and signed by the President, unelected judges override the democratic process. This raises questions about whether judicial review is consistent with democratic governance.

Defenders respond that judicial review protects constitutional rights that majorities might violate. Democracy requires more than majority rule; it requires respecting minority rights, following constitutional procedures, and limiting government power. Courts perform this essential function by enforcing the Constitution even against popular laws.

Historical Context

Before Marbury v. Madison, the power of judicial review was uncertain. The Constitution does not explicitly grant it. Some founders assumed courts would have this power. Alexander Hamilton argued for it in Federalist No. 78. Others thought Congress or state legislatures should interpret the Constitution.

The Marbury case arose from political conflict. President John Adams appointed William Marbury as a justice of the peace in his final hours in office. The incoming President, Thomas Jefferson, ordered his Secretary of State, James Madison, not to deliver Marbury’s commission. Marbury sued, asking the Supreme Court to order Madison to deliver the commission.

Chief Justice John Marshall faced a dilemma. If the Court ordered Madison to deliver the commission and he refused, the Court would look weak and powerless. But if the Court sided with Jefferson, it would appear to cave to political pressure.

Marshall crafted a clever solution. He ruled that Marbury had a right to his commission. But he also ruled that the law giving the Supreme Court power to hear this case was unconstitutional because it exceeded the Court’s jurisdiction defined in Article III. By striking down part of a law, Marshall asserted judicial review. By ruling against Marbury’s specific request, he avoided a confrontation Jefferson could simply ignore.

This decision established judicial review firmly. Marshall wrote: “It is emphatically the province and duty of the judicial department to say what the law is.” Courts must interpret laws and the Constitution, and when they conflict, the Constitution prevails. This principle has guided American government ever since.

Judicial Review in Action

Courts exercise judicial review regularly, though most laws are upheld as constitutional. Here are some landmark examples of judicial review:

McCulloch v. Maryland (1819): Upheld federal power to create a national bank and struck down state efforts to tax it, establishing broad federal authority.

Dred Scott v. Sandford (1857): Struck down the Missouri Compromise, ruling Congress could not ban slavery in territories. This terrible decision contributed to the Civil War.

Plessy v. Ferguson (1896): Upheld racial segregation under “separate but equal” doctrine. This decision, overturned by Brown v. Board of Education, shows courts sometimes make mistakes.

Schechter Poultry Corp. v. United States (1935): Struck down major parts of FDR’s New Deal, finding Congress delegated too much power to the President.

Brown v. Board of Education (1954): Declared school segregation unconstitutional, overturning Plessy and driving desegregation.

Miranda v. Arizona (1966): Required police to inform suspects of rights, protecting Fifth Amendment rights.

United States v. Nixon (1974): Rejected presidential claims of absolute executive privilege, forcing Nixon to release Watergate tapes.

Bush v. Gore (2000): Ended Florida recount, effectively deciding the presidential election.

District of Columbia v. Heller (2008): Found Second Amendment protects individual gun ownership.

National Federation of Independent Business v. Sebelius (2012): Upheld most of the Affordable Care Act but limited federal power to coerce states.

Obergefell v. Hodges (2015): Found constitutional right to same-sex marriage, striking down bans nationwide.

These cases show judicial review’s enormous impact on American law and society.

Connections That Matter

Understanding judicial review connects to separation of powers. The judiciary checks legislative and executive power by determining if laws and actions violate the Constitution. This prevents other branches from exceeding constitutional authority.

Judicial review relates to constitutional supremacy. The Constitution is the supreme law of the land. Judicial review enforces this supremacy by ensuring government obeys constitutional limits. Without judicial review, the Constitution would be merely advisory.

Judicial review also connects to individual rights protection. Many constitutional provisions protect individual liberties. Courts enforce these protections through judicial review, preventing government from violating rights even when politically popular to do so.

For more on the courts’ role, see our article on the judicial branch in the uscis-questions category. To understand how judicial review was established, explore our explanation of Marbury v. Madison. To learn about the Supreme Court, read about its powers and composition.

Top 10 Frequently Asked Questions

Can Congress overrule the Supreme Court?
Not directly. Congress cannot overturn Supreme Court interpretations of the Constitution. But Congress can propose constitutional amendments that, if ratified, would override Court decisions. Congress can also pass new laws responding to Court rulings.

What if the President ignores a court ruling?
The President must enforce court decisions. Ignoring them would be unconstitutional and could lead to impeachment. Andrew Jackson allegedly said “John Marshall has made his decision; now let him enforce it,” but this is likely apocryphal. Presidents generally obey court rulings even when disagreeing.

Do state courts have judicial review?
Yes. State courts can review state laws for compliance with state constitutions and U.S. Constitution. But Supreme Court interpretations of the U.S. Constitution bind state courts.

How often do courts strike down laws?
Rarely. Most laws are constitutional. Courts strike down federal laws occasionally, maybe once or twice per Supreme Court term. More state and local laws are struck down as unconstitutional.

Can courts review anything?
Only actual cases and controversies. Courts cannot issue advisory opinions or review laws abstractly. Someone must be harmed and bring a lawsuit before courts can exercise judicial review.

What if five justices are wrong?
The Supreme Court’s decisions are final even if flawed. Bad decisions can only be overturned by later Supreme Court decisions or constitutional amendments. Courts have overturned their own precedents when recognizing past errors.

Is judicial review democratic?
This is debated. Critics say unelected judges overrule democratic majorities. Defenders say judicial review protects constitutional rights that majorities might violate. Democracy requires respecting limits on majority power.

Can judges be removed for bad decisions?
Only through impeachment for misconduct, not for wrong decisions. Judges cannot be removed simply for making unpopular or incorrect rulings. This independence is essential for judicial review to work.

Do other countries have judicial review?
Many do, though often differently structured. Some countries have separate constitutional courts. Others give regular courts this power like the U.S. American-style judicial review has influenced constitutional systems worldwide.

What should I memorize for the citizenship test?
The judicial branch reviews laws and decides if they are constitutional. This is called judicial review. Remember: courts determine if laws follow the Constitution. If laws violate the Constitution, courts can strike them down.