The Power of Judicial Review

In theory, it's the role of Congress and the president (the two elected branches of government) to make public policy, and it's the job of the courts (the appointed branch) to interpret and apply the law. In reality, however, judges make policy all the time when carrying out this task. This is made possible by a doctrine known as judicial review, the single greatest power of the courts.

In the strictest terms, judicial review is the authority of the courts to determine whether acts of Congress, the executive branch, and the states are constitutional. However, the concept is nowhere to be found in the Constitution; it was established by the Supreme Court in a landmark case called Marbury v. Madison, to this day considered the most important decision in Supreme Court history.

Although the Supreme Court established the power of judicial review in 1803, it used it infrequently through the first part of the nineteenth century. In fact, prior to the Civil War only two federal laws were declared unconstitutional. On the other hand, during the 1930s the Court aggressively used judicial review to strike down dozens of New Deal laws and regulations.

The Case of Marbury v. Madison

Judicial review was born out of political expediency more than anything else. Shortly before leaving office in 1801, President John Adams appointed William Marbury the federal justice of the peace. The new president, Thomas Jefferson, then ordered his secretary of state, James Madison, to refuse to recognize Marbury's appointment. In response, Mar-bury filed a lawsuit against Madison, claiming that Madison's failure violated section 13 of the Judiciary Act of 1789.

Supreme Court Chief Justice John Marshall despised Thomas Jefferson and believed that Marbury should be given his commission. Marshall knew, however, that if he ruled in favor of Marbury, Jefferson would certainly ignore his decision, and the authority of the Supreme Court would be weakened. He also knew that if he ruled in favor of Jefferson, it would appear that he was bowing to political pressure, no doubt undermining the Court's independence.

Faced with this dilemma, Marshall conjured a brilliant solution. He ruled against Marbury, stating that the Supreme Court could not hear the case because section 13 of the Judiciary Act of 1789, which Marbury claimed granted the Supreme Court authority to hear such cases, was itself unconstitutional. In doing this, Marshall established that the Supreme Court had the inherent power to declare acts of Congress unconstitutional, while at the same time not inviting retaliation from Thomas Jefferson, who was delighted that Marbury was denied his commission.

Marshall reasoned that “if the courts are to regard the Constitution; and the Constitution is superior to any ordinary act of the legislature; the Constitution, and not such ordinary act, must govern the case to which they both apply.” In the end, he concluded, “It is emphatically the province and duty of the judicial department to say what the law is.”

Today, all courts — both at the national and state level — have the power to determine the constitutionality of legislative acts. This aspect of American jurisprudence stands apart from most other Western democracies, in which only the highest courts (if any) exercise the power of judicial review.

Judicial Activism and Restraint

There are two primary schools of thought when it comes to exercising judicial review. “Activist” judges and justices generally believe that the courts should aggressively use judicial review to thwart acts of Congress, executive agencies, and the state legislatures when they find those acts to be excessive in authority or contrary to public policy. “Restraintist” judges and justices, on the other hand, believe that the courts should defer to the judgment of the elected branches of government on legislative matters, and they tend to withhold using judicial review except in cases where a law or rule is clearly unconstitutional.

Today, judicial activism is generally associated with political liberalism, while judicial restraint is linked to conservatism. Democratic presidents typically appoint activist judges and justices who view the courts as vehicles for social change and betterment; Republican presidents typically appoint restraintist judges and justices who believe the courts should have a limited role in making public policy.

The landmark abortion case Roe v. Wade highlights the differing judicial philosophies. Proponents of the decision believe that the Supreme Court properly found that the U.S. Constitution guarantees the right to an abortion as part of its right to privacy, while opponents contend that the court circumvented the will of elected officials by reading new rights into the Constitution. It's unlikely the debate will be resolved in the near future.

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