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Judicial review in the United States

June 21, 2023

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This article is written by Nishka Kamath, a graduate of Nalanda Law College, University of Mumbai. This article explains the concept of judicial review in the United States, along with its elaborate history, objectives, importance, and power, amongst other things. It also talks about the grounds of judicial review in great detail, along with the process of conducting a judicial review. Further, the expansion, exclusion, limitations, and criticisms are talked about in brief. Furthermore, an attempt has been made to elucidate the concept of judicial review through landmark judgments and several other cases decided by the Supreme Court of the United States.

It has been published by Rachit Garg.

Table of Contents

Introduction

You might be aware that there are three branches of government, the legislative, the executive, and the judiciary. The functions of these three branches are as follows:

The legislative makes the laws,
The executive carries enforces or executes the laws, and
The judiciary interprets the law.

This is because of the concept of separation of powers.

Now, to understand the subject of judicial review in the United States, let us assume these branches are superheroes. Let’s say, Dr. Strange is the legislative branch, Captain America is the executive branch, and the Hulk is the judicial branch. Now, since the judicial branch has the power of judicial review and is the main concept in understanding the judicial branch, we can say it is Hulk Smash power! Whaaack! Let us dive in and understand the topic better.

Fun fact: From 1960 to 2019, the Supreme Court held 483 acts unconstitutional in whole or in part.

What is judicial review?

Judicial review is regarded as the power of the Supreme Court in the United States to examine and scrutinize legislation and actions by Congress and the President to ascertain whether they are constitutional or in accordance with the provisions of the U.S. Constitution or not. In other words, it is the power of the Supreme Court to establish whether an act of Congress or the executive branch of the government is valid or not. In case, the court presumes it to be invalid, it is entrusted with the authority to strike down such a law or executive action. This process is a crucial part of the checks and balances that are utilized by the three branches of the federal government to ensure no branch exceeds its powers and that the balance of power is maintained.

Interesting fact: The concept of judicial review first originated in the United States and was thereby adopted by other nations over a period of time. It was formerly used for the first time in the case of Marbury (discussed in detail below) by John Marshal, who subsequently became the Chief Justice of the American Supreme Court.

Definition of judicial review

Redform defined judicial reviews as “Judicial review is the power of a court to enquire whether a law, executive order or other official action conflicts with a written constitution and if the court concludes that it does, declare it unconstitutional and void“.

Further, the basis of judicial review can be witnessed in the writings of Alexander Hamilton in the “Federalist”, where he said, “the interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact and must be regarded by the judges as a fundamental law. It, therefore, belongs to them to ascertain its meaning and meaning of an act passed by the legislature”. He also mentioned that when there is any conflict between the Constitution and the law, all the justices must choose the Constitution, as it is the supreme law of the nation. This became the basis for judicial review.

Examples of judicial review in context to landmark cases

Over the past few years, the Supreme Court has utilized its power of judicial review to overrule numerous cases decided by the lower courts. Mentioned below are some of the instances of such notable cases:

Roe v. Wade (1973)

In Roe v. Wade (1973), the Supreme Court affirmed that the state laws that forbade abortion were unconstitutional and that women had the right to get an abortion. This right fell within the right to privacy enshrined under the Fourteenth Amendment. This judgment of the Court affected all the 46 states in the U.S. Further, in a broader sense, this case ensured that the Supreme Court’s right to exercise judicial review extended to matters relating to women’s reproductive rights, like contraception.

Loving v. Virginia (1967)

In this famous case of Loving v. Virginia (1967), the Supreme Court struck down state laws that forbade interracial marriage, claiming that any differences carried out in executing such laws were generally “odious to a free people” and were subject to “the most rigid scrutiny” under the equal protection clause mentioned in the Constitution. The Court also stated that the Virginia law in discussion served no other purpose than “invidious racial discrimination”.

Citizens United v. Federal Election Commission (2010)

In this controversial case that remains contentious to date, the Supreme Court ruled that the laws that forbid spending on election advertising or political campaigns by groups like corporations, labor unions, or other collective entities are against the First Amendment of the Constitution as imposing limitations constitutes a prior restraint on speech. The Court, with a 5-to-4 majority, reached a decision that, under the First Amendment, corporate funding of political advertisements in elections cannot be restricted or limited.

Obergefell v. Hodges (2015)

In the case of Obergefell v. Hodges (2015), the Supreme Court, again trudging through controversy-swollen waters, declared state laws that considered same-sex marriage to be unconstitutional, a violation of the Fourteenth Amendment due process clause. By a majority 5-4 ruling, the Court remarked that the due process of law clause under the Fourteenth Amendment fends for the right to marry as a fundamental right and that the same provision is apolitical to all couples, including same-sex couples, in the same manner as that of opposite-sex couples. Additionally, the Court also commented that even though the First Amendment protects the rights of religious organizations to follow their principles, it does not permit them to refuse same-sex couples their right to be married on the same conditions as that of opposite-sex couples.

History of judicial review

The history of judicial review in the United States is quite elaborate; hence, for the better understanding of the readers, it has been divided into three parts based on the timeline, namely:

Before the enactment of Constitution,
Between the enactment of Constitution and the judgment in the Marbury case, and
After the judgment of the Marbury case.

Judicial review before the enactment of the Constitution

Even before the Constitutional Convention was enacted in 1787, the power of judicial review had been utilized by a number of states. From 1776 to 1787, the state courts in at least seven out of the thirteen states exercised the power of judicial review and declared several state statutes to be null and void as they violated the provisions or clauses of the state Constitution or other higher laws enacted during that period.

Further, the first American decision to recognize the principle of judicial review was Bayard v. Singleton 1 N.C. 5 (N.C. Super. 1787). This case was decided by the Supreme Court of North Carolina’s predecessor. The state of North Carolina and its equivalents in other states dealt with state constitutions as statements of governing law to be clarified, elucidated, and applied by the judges.

According to these courts, as the state constitution was the main law of the state, the state constitution must be applied rather than any other act or legislature that was not in accordance with the state laws. A point must be noted that these state court cases that exercised their power of judicial review were announced in the press and were open for public decision and comment. Some of the notable cases decided by the state courts that involved judicial review were as follows:

Commonwealth v. Calton 8 Va. 5, 4 Call 5 (1782),
Rutgers v. Waddington (New York, 1784),
Trevett v. Weeden (Rhode Island, 1786).

Larry Kramer, a scholar, approved Justice Iredell’s opinion that said any judge who applies any unconstitutional law has their hands joined in the unconstitutionality and that they also become lawbreakers. Further, the following delegates to the Constitutional Convention, inter alia, were familiar with the concept of judicial review as they were lawyers or judges by profession and had experienced the principle of judicial review themselves:

Alexander Hamilton,
John Blair Jr. George Wythe, and
Edmund Randolph.

Moreover, other delegates to the Constitutional Convention adverted to some of the court cases during the debates at the Constitutional Convention. Thus, the framers and the public of the U.S. were familiar with the concept of judicial review before the Constitutional Convention. Some historians claim that Dr. Bonham’s case played a major role in influencing the development of judicial review in the U.S. This has been quite a subject of contention among some historians.

Judicial review between the period of adoption of the Constitution and the judgment of the Supreme Court on the Marbury case

Judiciary Act of 1789

The Judiciary Act of 1789 was passed by the first Congress. This Act established the lower federal courts and prescribed all the requisite details involving federal court jurisdiction.

Under the Act, Section 25 stated that in any matter where the state court took a decision to deem a federal statute to be null and void or when the state court validated any statute that was otherwise objectionable or against the provisions of the Constitution, then the Supreme Court has to hear appeals from the state courts. This Section explicitly gives the Supreme Court the authority to examine and inspect the decisions inferred by the state court that involves the constitutionality of both federal and state statutes. Thus, with the advent of the Judiciary Act, the concept of judicial review was incorporated into the justice system.

Court decisions from 1788 to 1803

Before the ratification of the Constitution in 1788 and the landmark ruling in the Marbury case in 1803, the power of judicial review was exercised in the federal and state courts. In a comprehensive analysis by Professor William Treanor, it was found that about thirty one state or federal cases between the period of 1788 and 1803 were struck down and declared to be unconstitutional, whereas there were an additional seven cases where statutes were upheld, but there was at least one judge in these cases who dissented the decision and claimed them to be unconstitutional. Further, upon examining the above cases, Professor William Treanor concluded that “the sheer number of these decisions not only belies the notion that the institution of judicial review was created by Chief Justice Marshall in Marbury, it also reflects widespread acceptance and application of the doctrine.”

Before the landmark case of Marbury was decided, several other cases related to judicial review reached the Supreme Court. For instance, in Hayburn’s case, 2 U.S. (2 Dall.) 409 (1792), the federal circuit courts made history when it was held that an act of Congress was null and void for the first time. In this case, circuit courts reached a decision that Congress had contravened the provisions of the Constitution by enacting an Act that needed circuit court judges to determine matters involving pension applications. The circuit courts considered this decision to be against the functions of the judiciary under Article III. Thus, even though an appeal was made to the Supreme Court on these decisions, the appeals became insignificant when the statute was revoked by Congress during the pending appeals.

Further, in yet another case, United States v. Yale Todd (1794), which was not officially reported and whose reference was made in the form of a note at the end of the decision of the Supreme Court in the case titled United States v. Ferreira, 54 U.S. (13 How.) 40 (1851), the Supreme Court overturned a pension that was awarded in context to Hayburn’s case. The Court in this case came to the inference that the Act giving judges the authority to decide pensions was unconstitutional as it was not their judicial function. However, it must be noted that since there was no official report published in regards to this case, it was not used as a precedent.

Further, Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796), was another case in which the Supreme Court challenged the constitutionality of an act of Congress. In this case, it was contended that a federal tax on carriages overstepped the constitutional provision pertaining to “direct” taxes. The Court upheld the tax, claiming it to be constitutional. Even though the Court did not assert this provision to be invalid, it engaged in the process of judicial review by scrutinizing the validity of the same. This case received widespread publicity at that time, and the observers understood that the constitutionality of an act by Congress was being assessed by the Court. As the statute was declared to be valid, the Supreme Court did not explicitly mention that it had the authority to pronounce that a particular statute was unconstitutional.

Moreover, in the case of Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796), the Supreme Court invalidated a state statute for the first time. The Court scrutinized a Virginia law under the supremacy clause in context to the pre-revolutionary war debts and established that it was against the peace treaty between the United States and Great Britain, thus declaring it to be invalid.

Further, in the case of Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798), the Supreme Court ruled that it had no jurisdiction to hear the matter considering the limitations provided in the Eleventh Amendment. This decision can be considered an implicit finding that the Judiciary Act of 1789, which empowers the court to take decisions, was partly unconstitutional. Besides, the Court did not justify its decision, nor did it comment that it found the statute to be unconstitutional.

Further in the case of Cooper v. Telfair, 4 U.S. (4 Dall.) 14 (1800), Justice Chase commented, “It is indeed a general opinion—it is expressly admitted by all this bar and some of the judges have, individually in the circuits, decided- that the Supreme Court can declare an act of Congress to be unconstitutional, and therefore invalid, but there is no adjudication of the Supreme Court itself upon the point.”

Judicial review after the judgment of Marbury

The Marbury case acted as a turning point for the Supreme Court, as it adopted a monitoring role over the activities of the government. After the Court wielded its power in the Marbury case, it refrained from overruling federal statutes for the next five decades. The Court did not take action in this regard until 1857 in the case of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), but the Court did utilize its power of judicial review in other cases, especially in numerous state statutes that were against the provisions of the Constitution. In the case of Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810), the Supreme Court struck down a state statute as unconstitutional.

Further, in some cases, the state courts’ judgments were final and not subject to review by the Supreme Court. They contended that the Supreme Court has no power granted by the Constitution to analyze the decisions of the state court. Moreover, the state courts argued that the Judiciary Act of 1789, which granted the Supreme Court the power to hear appeals from state courts, was not valid or constitutional. Also, these state courts claimed that the principle of judicial review was not extendable to authorize federal review of state court decisions, but this would have given the states the freedom to adopt their own interpretations of the Constitution, thus the argument was rejected by the Supreme Court.

In the case of Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816), the Supreme Court ruled that according to Article III of the Constitution, the federal courts have jurisdiction to hear all cases arising from the Constitution and laws of the United States. It also held that the Supreme Court has appellate jurisdiction pertaining to all such cases, irrespective of whether they were filed in state or federal courts. The Court reiterated the decision in a criminal case titled Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821). Further, the fact that the Supreme Court has the power to examine decisions of state courts that involve federal law is now well established. Additionally, the Supreme Court in the case of Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804), commonly known as the “Fish case,” has reexamined the actions of the federal executive branch, deciding whether actions were authorized by acts of Congress or exceeded the authority or power given to Congress.

Besides, until September 2017, the Supreme Court had declared around 182 acts of the U.S. Congress to be unconstitutional, either in entirety or in parts. Some recent cases were taken in 2017 and 2019 in Matal v. Tam, 582 US (2017) and Iancu v. Brunetti, 139 S. Ct. 2294 (2019) respectively, where some portions of the Lanham Act of 1946 were struck down as they violated the freedom of speech clause.

Main objects of judicial review

The main objectives of judicial review in the U.S. are as follows:

To affirm that the laws are unconstitutional in case they are not in accordance with the provisions of the Constitution, which, by the way, is regarded as the supreme law of the country.
To stand up against rational laws that are challenged to be unconstitutional.
To safeguard and uphold the supremacy of the U.S. Constitution by interpreting its provisions.
To safeguard the legislative functions of the Congress from being cut in or encroached upon by other departments of the Government.
To keep a check on the activities of the Congress and the state legislature on delegation of essential legislative functions to the executives or to keep a check on the Congress on the delegation of legislative functions to the state legislature.

Judicial review and the Constitution

The framers of the US Constitution, considering the doctrine of separation of power and limited government, did not initially provide the power of judicial review to the judiciary; however, considering the available records, it is found that a majority of individuals in the Philadelphia Convention favored the provisions of judicial review. Additionally, Alexander Hamilton, the founding father of the United States, opined that the branch of “independent judiciary” was the best blockade to constitutional encroachments committed by other branches of government and had the intention of entrusting the Supreme Court with the supreme authority to set aside legislation, thereby promoting the principle of check and balance. It should be noted that there is no explicit provision in the Constitution on the Supreme Court’s power of judicial review, but it is implied under Article III Section 2⁴ and Article VI Section 2.

Article III, Section 2, states that “the judicial power shall extend to all situations, in law and equity, arising under this Constitution, the United States’ laws, as well as the, and the treaties made or to be formed under this authority.” Whereas, Article VI, Section 2, states that “this constitution and the laws of the United States adopted in pursuance thereof, as well as any treaties formed under the authority of the United States, shall be the supreme law of the land.”

Human rights, being experimentally enforced in the United States, have paved the way for establishing the procedure of judicial review in the United States. The judiciary has been meticulously working on safeguarding the rights of individuals belonging to socio-economic strata and minority interests that are afflicted with inadequate representation in the decision-making process.

Some of the noteworthy decisions are as follows:

Plessy v. Ferguson (1896)

In the case of Plessy v. Ferguson (1896), the Supreme Court of the United States referred to the doctrine of ‘separate but equal’; as per this doctrine, laws mandating racial segregation were constitutionally valid. The US Supreme Court, by a seven-to-one majority, reached a decision that the laws mandating separate but equal doctrine were valid and that there can be separate but equal accommodation for African Americans and whites. The Court also opined that as the accommodations were seemingly equal and separate, it did not indicate legal inferiority and that such laws were not a violation of the Thirteenth Amendment that prohibited slavery, nor was it an infringement on the rights of legal equality of the black, which would be a violation of the Fourteenth Amendment that guaranteed equal protection of the laws to all. It further said the Fourteenth Amendment guarantees the right to ‘equal’ and not ‘same’ services or facilities.

Significance of the case

This case was significantly important because it affirmed the constitutionality of racial segregation. As a matter of power, it precluded constitutional challenges to racial segregation for more than half a century until it was finally overturned in one case discussed in the coming passages.

Weeks v. United States (1914)

In the case of Weeks v. United States (1914), the U.S. Supreme Court, for the first time, applied a principle that was eventually known as the ‘exclusionary rule’.

In this case, police visited the house of Fremont Weeks and confiscated some papers that were then used against him to convict him of transporting lottery tickets through the mail. The police seized these papers without a search warrant. Aggrieved by such an act, Week decided to take action against the police and filed a petition for the return of his private possessions. The main issue, in this case, was whether such an act by the police violated the Fourth Amendment rights granted to the citizens of the nation.

Verdict of the case

The Supreme Court reached a decision that the activity performed by the police officers in seizing the papers was a direct violation of the Fourth Amendment. Further, it also opined that the government’s refusal to submit his possession was also a violation of the Fourth Amendment. The Court said any evidence extracted by unjustifiable or illegitimate search and seizure is not admissible in court as evidence.

Significance of the case

As mentioned above, this was the first case where the principle of ‘exclusionary rule’ was mentioned.

Brown v. Board (1954)

In the case of Brown v. Board, the US Supreme Court, by the power of judicial review, overturned the verdict of Plessy v. Ferguson (1896). The US Supreme Court, by a nine-to-zero majority, held that racial segregation in schools was against the Fourteenth Amendment of the Constitution. The Court inferred that providing separate educational facilities for whites and African Americans was quite unequal and that the ‘separate but equal‘ doctrine cited by the Supreme Court in the case of Plessy v. Ferguson was invalid in matters relating to public education.

Significance of the case

This case is regarded as one of the most important rulings of the Supreme Court, as it inspired the Civil Rights Movements in the late 1950s and 1960s.

Fun fact: The attorney who argued on behalf of the plaintiff – Thurgood Marshall, was the first African American to serve in the U.S. Supreme Court.

Other cases where the power of judicial review was executed by the U.S. Supreme Court are Virginia Board of Education v. Barnette (1943) and Tinker v. Des Moines Independent Community School District (1969), where the First Amendment Rights of children going to school were safeguarded. The Supreme Court took a stand against the suppression of ideas, opinions, and learning in the classroom. Moreover, in Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court said that a suspect before being taken into custody for arrest or questioning must be informed about the reason; this is referred as ‘Miranda rights’ which is described as the right-

to be defended through an attorney,
to stay silent, and
the right against self-accusation for any evidence, statement or confession to be admissible.

Moreover, in the case of United States v. Nixon (1974), the Supreme Court upheld constitutional supremacy and maintained the principle of checks and balances, rejecting absolute executive privilege, i.e., unqualified presidential immunity from the judicial process.

Importance of judicial review

Judicial review is of utmost importance considering the following reasons:

It debars the executives from exercising their tyrannical power.
It protected the rights of the citizens.
It also plays a major role in keeping safe the independence of the judiciary.
It also helps stop the misuse of power, if any, by the branches of the government.

Power of judicial review

The power of judicial review entrusts the Supreme Court with the power to nullify any legislation or act by the other two branches of the government- the legislature or the executive- that contravenes the provisions of the Constitution. As mentioned numerous times, the U.S. Supreme Court usually has the authority to establish policies that have the power to affect the everyday lives of the individuals residing there. For instance, in 1954, the Supreme court overturned Plessy v. Ferguson in the case of Brown v. Board of Education; the decision of the Court led to the desegregation of public schools across the U.S.

Further, there is no explicit mention of the power of courts to carry out a judicial review; however, Alexander Hamilton, in one of his foundational documents, Federalist 78, spoke about the same. He mentioned that the courts must be entrusted with the authority to keep a check on the legislative branch by determining that no acts are against the provisions of the Constitution, which is the supreme law of the land. He said, “The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

Need of the power of judicial review

Even though the power of judicial review was utilized without any pre-planned objective, in this era the need for exercising such a power is due to the following matters:

To safeguard the Constitution.
To interpret the Constitution.
To maintain a balance between the centre and states.
To safeguard the rights of the citizens of the United States.
To maintain a balance between the different organs of the government and to ensure no organ acts ultra vires.

Who can do a judicial review in the United States

In the United States, the power of the courts is shown through the mechanism of judicial review. Judicial review is the superpower of the courts. Further, the power of judicial review is entrusted to the Supreme Court and is applicable to any actions by the federal, state, and local legislative and executive branches. Moreover, the federal and state courts have the authority to slash any legislation or activity by the executive branch they deem to be violating the provisions of the Constitution.

Grounds for judicial review

There are several grounds on which judicial review can be conducted by the authorized courts; some of them are as follows:

Illegality

This ground relies on determining the fact of whether the decision-maker had the legitimate power or authority to arrive at the decision thus inferred or whether the decision-maker acted ultra vires while discerning the case. In case the inference was reached without proper legal authority, it may be subjected to judicial review.

Irrationality

This ground states that if the inference thus made was totally irrational and that no reasonable decision-maker could have made it, then such a decision can be annulled by the court.

Failure to follow the proper procedure

If it is found that the decision-maker did not follow the correct, lawful procedure and gave undue advantage to any irrelevant fact(s), then such a decision can be subjected to judicial review.

Proportionality

This ground says the decision must be in proportion to the objective it was trying to accomplish or reach, and if that is not the case, the decision may be subjected to judicial review.

Legitimate expectation

This ground states that the decision-maker acts in accordance with the lawful expectations that the person or group seeking remedy had. In the event that the decision-maker does not meet legitimate expectations without providing any justifiable reason for the act, the decision may be subjected to judicial review.

Human rights

This ground ensures there is no decision or step taken that violates any individual’s fundamental human rights, like:

The right to a fair trial,
The right to freedom of speech, and
The right to privacy.

If the decision or step is against any human right(s), it may be subjected to judicial review.

Overall, the grounds for judicial review have the object of making sure that public bodies, officials, and public employees act within their legal powers, follow proper procedures, and make decisions that are rational and equitable.

Process of judicial review

There would hardly be any Americans who would argue that the process of judicial review in itself is controversial. As we all know, the judicial branch keeps a check on the legislature and the executive branch through the process of judicial review, as it is crucial to ensure that the structure of the government or the three distinct branches are in check with each other so that no branch acts ultra vires or becomes too powerful.

However, we can safely say that the process of judicial review is quite disputable as the process is subjected to distinct philosophies of constitutional interpretation, like judicial restraint and judicial activism. Let us have a look at what these philosophies exactly are!

Judicial self-restraint

On the one hand, there are supporters of the strict constructionist approach that highlights judicial restraint. These believers are of the belief that judges and judicial officers must not create policies but instead only judge and pass judgments, thus limiting themselves to applying rules stated clearly in the Constitution. This approach to reaching an inference limits policy making decisions by judges, thus depending on previous judgments, precedents, and the laws of the state.

Judicial activism

Whereas, on the other hand, there are believers who advocate for judicial activism, i.e., the Constitution is a living document, and the judges must have the liberty to enact policies, alleviate needs, and correct any acts of discrimination that are not paid attention to in the political process.

The basic limitation of judicial reviews rests with the concept of judicial activism. When the courts over-reach their power without any bona fide intentions, negative activism takes over, and within this concept lie all the limitations of judicial reviews.

Expansion of judicial review

Over the last few decades, the Supreme Court has successfully made numerous rulings that have struck down laws and executive actions as unconstitutional. In fact, the Court has been able to expand its powers to include exercising judicial review. For instance, the Supreme Court, in the case of Cohens v. Virginia (1821), the power of judicial review was expanded to incorporate matters relating to state criminal courts. Further, in the case of Cooper v. Aaron (1958), the Supreme Court expanded the power of judicial review so as to declare any activity of any branch of the state government unconstitutional. The Court also announced that the states must obey and adhere to the decisions taken by the U.S. Supreme Court and that they cannot refuse to follow them.

Exclusion of judicial review

As per Section 2, Clause 1, of Article III of the U.S. Constitution, the power to exercise judicial review will be extended to all matters; the same is as follows:

To all cases in law and equity, that come into existence under this Constitution, the laws of the United States, and treaties enacted, or which shall be enacted, under their authority;
To all cases that affect the ambassadors, other public ministers and consuls;
To all cases involving admiralty and maritime jurisdiction;
To altercations to which the United States shall be a party;
To altercations amongst two or more states or a state and citizens of another state or among citizens of different states, among citizens of the same state claiming land under grants of different states, and among a state, or the citizens thereof, and foreign states, citizens or subjects.

Limitations of judicial review

There are certain limitations exercised by the court on the exercise of constitutional judicial review; they are as follows:

Doctrines limiting judicial review

Prudential considerations

In context with the case of Marbury v. Madison, it is quite implied that the court has the duty to make decisions that reach jurisdictional standards.

As stated by Chief Justice Marshall in the case of Cohens v. Virginia, the court will take jurisdiction of the matter only if it has to. The judiciary cannot, like the legislation, bypass taking a step “because it approaches the confines of the Constitution” and that the case cannot be passed because the judiciary is skeptical about it. He further commented that if a case is brought before the judiciary, they are obliged to reach a decision. He also said the court has no more authority to refuse the exercise of jurisdiction that is given than to” usurp that which is not given. The one or the other would be treason to the constitution“. Thus, we can infer from the above comment that judicial review is exercised by the courts only when it is utmost necessary and to declare what the law actually says! Further, we can also deduce that judicial review is exercised by the courts only in those cases that are without will or discretion, and its exercise is surrounded by the inherent limitations of the judicial process.

Further, the court has at times been more strict in some matters relating to discretionary rules or concepts of restraint for recruiting its power of judicial review, which is a contradiction of the aforementioned comment of Justice Marshall. Also, at times, the courts have been strict in following the prudential theorems to avoid taking any decisions where it felt “restraint” to be more desirable than “activism”.

The doctrine of strict necessity

The Court has time and again asserted that their power of judicial review will only be exercised to decide constitutional issues if strict necessity compels them to do so. Thus, the court will avoid taking decisions on constitutional issues unless it is of utmost necessity to do so.

The doctrine of clear mistake

A statute or decision can only be declared invalid or illegitimate when those who have the privilege to enact the law have erred in reaching an inference, and the same is crystal clear so as to not open the door to rational questions. Thus, unless the statute is clearly unconstitutional beyond all reasonable doubts, it cannot come under the scrutiny of judicial review by the court.

The other limitations are:

Exclusion of extra-constitutional tests,
Presumption of constitutionality,
Disallowance by statutory interpretation, and
Stare-decisis in constitutional law.

Laws limiting judicial review

Even though the Supreme Court persists in examining and scrutinizing the constitutionality or validity of statutes, there are some powers reserved for Congress and the states that have an impact on what sort of cases are addressed before the court. For instance, under the Constitution, Article III, Section 2, provides power to Congress to make exceptions to the appellate jurisdiction of the Supreme Court. Moreover, the Supreme Court has explicitly mentioned that Congress has the power to review decisions on appellate jurisdiction and that it may also have the authority to make some legislative or executive action unreviewable. This concept is generally termed “jurisdiction stripping”.

Further, Congress tried a different method to limit judicial review in January 1868. In this matter, a bill was proposed that needed the approval of at least two-thirds majority of the justices in the court to declare any Act of Congress to be unconstitutional or invalid. The bill, however, was approved by the house, but this method was not fruitful as there was no clear mention of how the bill’s own constitutionality would be decided in this matter, hence no decision was reached at.

Moreover, several bills were presented by Congress that would need the approval of a majority of the justices to exercise the principle of judicial review. Further, it must be noted that during the early years of the United States, an approval of a two-thirds majority was required for the Supreme Court to exercise its power of judicial review, the reason being that there were six justices in the Court to decide on any matter, and a simple majority and a two thirds majority, both, would need four votes. Presently, in order for the Supreme Court to exercise its power of judicial review, it is crucial that the Constitutions of two states receive the assent of the majority of Supreme Court justices, for instance, Nebraska (five out of seven justices) and North Dakota (four out of five justices).

Judicial review and the Marbury decision

Facts of the case

John Marshall, before taking the position of the Chief Justice of the Supreme Court served as John Adams secretary of state.
On the last day of John Adams in his office, he asked his secretary of state to give commissions of appointments to 17 people, one of whom was William Marbury. William Marbury was to be appointed as the justice of the peace in Washington D.C.
However, Marshall did not succeed in furnishing the commission and left the task to be completed by the new incoming secretary of state- James Madison.
But, Madison expressed his denials to furnish the commission.
Agitated by this action, Marbury sued Madison demanding that an order be issued by the Supreme Court to provide him his commission.
Marbury and three others stated that the Supreme Court had the original jurisdiction in the matter under the Judiciary Act of 1789.

Ruling in the case

We can say that the new Chief Justice was very much well-versed with the facts of the case, as he was right in the middle when the dispute occurred.
Not only was the decision pronounced in the favor of Marbury, but also the Court declared the Judiciary Act of 1789 to be unconstitutional.

Significance of the case

It was in this case, where the unanimous decision of Chief Justice John Marshall and his associate justices, the right of the Supreme Court to examine and determine the constitutionality of laws and acts of the executive, i.e., judicial review was born.
Since this decision, the Supreme Court has expanded its power of judicial review to quite an extent.

Let us have a look at some of the decisions of the Supreme Court after the landmark judgment of the Marbury case.

Case laws on judicial review in the United States after Marbury decision

While some cases received widespread public attention, there were some cases that didn’t, yet they provided substantial insights on the principle of judicial review. Mentioned below is an amalgamation of cases from both categories.

McCulloch v. Maryland (1819)

In the landmark case of McCulloch v. Maryland, 17 U.S. 316 (1819), the U.S. Supreme Court expounded the scope of the legislative power of the U.S. Congress and its relation to the powers of American state legislatures. The dispute in this matter was regarding the powers of federal and state laws. In simple words, this case was about the validity of the national bank and a tax that was imposed by the state of Maryland on the bank. The cashier of the Baltimore branch of the bank, McCulloch, declined to pay any such tax. The case was filed on the grounds that state law has the authority to impose a tax on the bank, which was established by federal law.

The Supreme Court, in its verdict, stated that the “necessary and proper” clause of the U.S. Constitution entrusted the U.S. federal government with some implied powers that may not be specifically mentioned in the Constitution and that the American federal government is superior over the states, thus the state has limited ability to interfere with the federal government. So, the state law did not have the right to impose a tax on the union authority. As per this judgment, the doctrine of “immunity of instrumentalities” was formulated in this case.

Significance of the case

This case had two major effects on the meaning of federalism in the United States. Firstly, the federal government has some powers that are not explicitly mentioned in the Constitution; thus, with this judgment, the federal power of the federal government was reinforced and the scope of the federal government to achieve the duties and responsibilities provided to them in the Constitution was widened. Secondly, with this decision, it was established that the United States has a solid Central Government and that federal law has authority over state law.

In a nutshell, this case made sure that the primary intention of the Constitution to build a strong Central Government was achieved. Further, the guarantee that these states cannot impede or meddle with the powers entrusted to the federal government was also attained.

Gibbons v. Ogden (1824)

In the case of Gibbons v. Ogden, 22 U.S. 1 (1824), one of the landmark decisions taken by the Supreme Court of the United States was concluded by Justice Marshall. Here, it was held that the power granted by the “commerce clause” to Congress also included the power to regulate navigation.

Significance of the case

This verdict has paved the way to provide the foundation for Congress’ regulation of railroads, freeways, and television and radio broadcasts.

Dred Scott v. Sandford (1857)

The 1857 case of Dred Scott v. Sandford, 60 U.S. 393, was a landmark decision of the U.S. Supreme Court and stated that former slaves or people of African descent did not have the right to approach the federal courts considering they had no American citizenship. Also, they could not enjoy the rights and privileges conferred by the U.S. Constitution considering the absence of citizenship; however, this decision was nullified by the incorporation of the Thirteenth and Fourteenth Amendments.

Significance of the case

This case played a major role in the arguments around the expansion of slavery; it further added fuel to the fire, thus resulting in the Civil War.

Schenck v. United States (1919)

In the case of Schenck v. United States, 249 U.S. 47 (1919), there was an issue of whether or not certain speeches that included sharing anti-war pamphlets drafted by men made in wartime were deemed to be contraventions of the Espionage Act of 1917, protected by the First Amendment right of free speech.

Here, the Court held that even though it was okay for the defendant to provide his opinion during ordinary times, there are some instances, like this case, where the nation was at war, and thus it does not justify the usage of the right to free speech under the First Amendment. The Court further stated that if the speech is said with the purpose of committing a crime, and that there is a crystal clear and present danger that such an act will surely result in the commission of a crime, then in such cases, the First Amendment does not safeguard the speaker from stringent actions taken by the government.

Significance of the case

The Schenck ruling became well-known for inventing the “clear and present danger” test, meaning that speech could be regulated if there is a clear and present danger. Further, this decision was the first to elucidate the metaphor of falsely yelling “Fire!” in a theater full of people.

Interesting fact: This landmark case was overturned in the case of Brandenburg v. Ohio, 395 U.S. 444 (1969), where it was stated that a speech could be restricted if an imminent illegitimate action was provoked.

Youngstown Sheet Tube Co. v. Sawyer (1952)

In Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), another landmark case of the U.S. Supreme Court, an order was passed that instructed the seizure of steel to avert any issue by the then President- Truman. Here, he constructed a law on his own to seize steel from all the citizens. The Court declared that this activity where the executive branch encroached the powers of the legislative branch was purely unconstitutional and further made an observation that the President or military supervision or control is not entrusted with the power to legislate laws under the Constitution In short, the President has no right to seize any individual’s private property without prior permission from Congress or the Constitution.

Significance of the case

This case, which was tried in the Court during the Korean war, helped curb the power of the executive branch significantly. The Court, with a 6-3 majority, declared the act of the President to be unconstitutional as it had not been authorized by Congress first.

Mapp v. Ohio (1961)

In the case of Mapp v. Ohio, 367 U.S. 643 (1961), the Court held that any evidence obtained through “unreasonable search and seizures” is not admissible in a court of law. Further, such an activity was also a violation of the Fourth Amendment of the U.S. Constitution. While passing the verdict, the Court said that the exclusionary rule that banned the usage of unconstitutionally obtained evidence in federal courts also extended to the states through the incorporation doctrine. This doctrine holds that most of the protections of the federal Bill of Rights are guaranteed against the states through the due process clause under the Fourteenth Amendment, which prevents states from denying life, liberty, or property without due process of law.

Must know fact: The aforementioned case was partly overturned in the case of Wolf v. Colorado, 338 U.S. 25 (1949).

Significance of the case

This case reinforced the Fourth Amendment’s protection, thus making it stronger against activities like illegitimate searches and seizures for any evidence obtained without a prior warrant to be used in a criminal trial or state court.

Engel v. Vitale (1962)

In Engel v. Vitale, 370 U.S. 421 (1962), a challenge was made in the Supreme Court by a group of agitated parents when schools in New York motivated teachers to lead students in a “non-denominational” prayer every morning. The Court established that school-led prayer was against the First Amendment and that there is a need to separate government and religion.

Significance of the case

This case struck down “non-denominational” prayers in public schools and raised the issue of whether public schools had the right to give consent to classroom prayers, especially when the U.S.A. was highly pluralistic and secular.

Gideon v. Wainwright, 372 U.S. 335 (1963)

In Gideon v. Wainwright, 372 U.S. 335 (1963), an issue was raised as to whether the Constitution has any provision that guarantees any individual charged with the offense of felony but not having the means to afford a lawyer to get legal aid through legal counsel or not. The Court, with the support of a majority of judges, asserted that a criminal defendant who cannot afford to pay for legal assistance can have a state appointed attorney under the Fourteenth Amendment, which creates such a right. Also, the Court affirmed that lawyers in criminal court cases are necessities and not luxuries.

Significance of the case

Along with the right to have legal assistance in criminal cases, this case also led to the expansion of the public defender system throughout the nation.

New York Times v. Sullivan (1964)

In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), during the Civil Rights Movement, a newspaper titled, “New York Times” published an advertisement that had some minor faults in its facts. This ad requested that people contribute donations to defend Martin Luther King, Jr., who was charged with the offense of perjury. The city Public Safety Commissioner, L.B. Sullivan, took it personally, as he felt criticism of his subordinates would also reflect on his ability, even though his name was not mentioned anywhere; so he sent a notice to the New York Times to retract the information, but they denied taking any such action. Thus, he filed a lawsuit, and he was awarded $500,000 for the damages by the Alabama State Court. The same decision was affirmed by the State Supreme Court, with which the New York Times disagreed and thus requested a higher court to review the decision.

Thus, the Supreme Court gave its judgment in a unanimous 9-0 majority and stated that in order for a claim of defamation or libel to be successful, it is necessary that the plaintiff provide proof that the defendant was aware of the statement being false or reckless when the information was published without scrutinizing the facts properly, as mentioned under the First Amendment.

Significance of the case

This decision determined the essential principle of freedom of speech guaranteed by the First Amendment. This decision ensured that the press may at times publish potentially defamatory or libellous statements regarding a public figure to ensure proper discussions and open exchanges of viewpoints on government authorities and public figures.

Miranda v. Arizona (1966)

In this case, the main issue was whether the police officials were obliged to inform people of their rights, like the right to remain silent and have legal assistance, or not. The Supreme Court affirmed and stated that under the Fifth and Sixth Amendments, the police officials must enlighten the individuals in police custody about the right to remain silent and get legal aid, and if the police err in doing so, the judge of the criminal court has the power to deny admission of evidence in the form of a statement provided by the accused during trial.

Significance of the case

This case led to the framing of Miranda rights and “Miranda warnings” that police officials are required to practice during arrests and interrogations.

Terry v. Ohio (1968)

In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court ruled that, under the Fourth Amendment, the police have the right to stop a suspect and frisk that person without probable cause to arrest if there is reason to believe that the person has committed, is committing, or is about to commit a crime and that they have reasonable reason to believe he is armed with dangerous weapons.

Significance of the case

This case set a precedent allowing police officials to stop and frisk any suspect if need be, thus making it constitutional for police officers to “stop and frisk”.

Tinker v. Des Moines (1969)

In this case, the most important issue raised was whether the authorities of public schools were entitled to disallow students from wearing a ‘black armband’ as a form of protest under the First Amendment of the U.S. Constitution. The Supreme Court of the US said that the armbands depicted the students’ right to free speech and expression. Further, these students cannot be deprived of these rights while they are on school premises. This inference was reached keeping in mind the right to free speech under the First Amendment. Additionally, the Court also remarked that school authorities could only put a ban on such activities when they interfered with or hindered the process of providing education to the students.

Here, there was no proof of any such activity taking place, and the school’s action clearly was a consequence of a fear of possible disruption rather than any actual interference, which is a violation of the First Amendment.

Significance of the case

This case became the basis for challenging any school-based oppression that violated the First Amendment.

United States v. Nixon (1974)

In this notable case of United States v. Nixon, 418 U.S. 683 (1974), the Supreme Court passed an order instructing Richard Nixon, who was the President then, to give evidence of tape recordings and other requisite documents that were related to the scandal to the federal district court. The judgment said the President cannot protect himself from furnishing evidence in a criminal prosecution case based on the doctrine of executive privilege, although the doctrine is reasonable in other instances.

Significance of the case

This case is one of the most well-known cases that limited the use of Presidential powers in the U.S.A. on the basis of the doctrine of executive privilege.

Goss v. Lopez (1975)

In Goss v. Lopez, 419 U.S. 565 (1975), an issue was raised as to whether or not the act of suspending students without any preliminary hearings violated the due process rights guaranteed to the students under the Fourteenth Amendment.

Here, the Supreme Court held that a public school has to first hear the students before suspending them and that not following this process will lead to a violation of the due process clause under the Fourteenth Amendment of the Constitution.

Significance of the case

In a 5-4 majority, the Court, in this case, held that, as the right to education was extended to its citizens in the state of Ohio, the right cannot be withdrawn on grounds of any misconduct. In this case, it was imposed that students facing suspensions have the right to be heard and be given notice in accordance with the same under the Fourteenth Amendment.

Regents of the University of California v. Bakke, (1978)

In the well-known case of Regents of the University of California v. Bakke, 438 U.S. 265 (1978), an issue was raised, that does an institution of higher learning have the authority to use race as a factor while admitting students or not? The Supreme Court reached a verdict that race, as a part of the admission procedure, be used by the universities until and unless there is no utilization of the process of a “fixed quota system“. Further, the Court also affirmed that, as the above case pertains to following the procedure of a fixed quota system, it is quite unnecessary. The Court declared this activity unconstitutional.

Significance of the case

This decision was the basis for starting a line of cases where the Court upheld affirmative action programs. In 2003, this program was again challenged in two cases, namely:

Gratz v. Bollinger, and
Grutter v. Bollinger.

In these cases, the Court elucidated that admission programs may include race as one of the factors in admitting students as long as they are narrowly tailored and do not create an automatic preference on the grounds of race. The Court also opined that a system that creates race-based preferences will be against the equal protection clause under the Fourteenth Amendment.

Texas v. Johnson (1989)

In Texas v. Johnson, 491 U.S. 397 (1989), a landmark Supreme Court case, a question was raised as to whether any activity related to the desecration of an American flag, by burning or otherwise, was safeguarded under First Amendment rights or not. Astonishingly, by a 5-4 majority, the Court held that the activity of burning an American flag was protected under the right to free speech under the First Amendment, as doing so counts as “symbolic speech and political speech”.

Significance of the case

This case established that the right to free speech under the First Amendment is more important than the American flag as a symbol of nationhood.

Zelma v. Simmons-Harris (2002)

In Zelman v. Simmons-Harris, 536 U.S. 639 (2002), the main issue was whether Ohio’s school voucher program was a violation of the establishment clause under the First Amendment or not. The Supreme Court, by a 5-4 majority, held that a state can establish programs to provide parents with tuition vouchers that would eventually permit students to attend a private or religious school of their choice, as the vouchers were not limited to the promotion of religious schools only.

Significance of the case

In this case, the Court stated that publicly funded vouchers could be used to send children to religious schools, provided they are in accordance with all the constitutional conditions.

Grutter v. Bollinger (2003)

In Grutter v. Bollinger, 539 U.S. 306 (2003), an issue was raised as to whether the action of the University of Michigan Law School to admit students based on racial preferences violated the equal protection clause under the Fourteenth Amendment or Title VI of the Civil Rights Act of 1964 or not. Here, it was concluded that using race as one of the factors in admitting students to a public educational institute is not against the equal protection clause of the Fourteenth Amendment if such a policy is “narrowly tailored” to serve the compelling interest of having a diversity of students on the law school premises and if a holistic procedure is followed to scrutinize every application as opposed to the quota system.

Significance of the case

This decision authorized the usage of racial preference in admitting candidates in order to promote diversity among students on the school premises.

Roper v. Simmons (2005)

In the case of Roper v. Simmons, 543 U.S. 551 (2005), a question was raised as to whether or not providing a minor with the death penalty violated the prohibition of “cruel and unusual punishment” stated under the Eighth Amendment and applied to the states through the incorporation doctrine of the 14th Amendment. The Court stated that executing a minor for a crime committed when they were under 18 years of age is indeed a “cruel and unusual punishment” and is prohibited under the Eighth Amendment.

Significance of the case

This case finally led to the termination of the juvenile death penalty.

Obergefell v. Hodges (2015)

In Obergefell v. Hodges, 576 U.S. (2015), fourteen same-sex couples along with two men whose partners passed away filed a suit in federal district courts in their home states under the grounds that their Fourteenth Amendment rights were violated and that they were deprived of their right to marry or to conduct marriages legally in another state, and they should be given full recognition. Here, every district court gave its verdict in favor of the petitioners, except the Sixth Circuit, which combined all these cases and reversed the judgment, so the petitioners approached the Supreme Court. The main issue raised here was whether the state violated the right of same-sex marriage couples t marry enshrined under the Fourteenth Amendment or not. The Supreme Court ruled that same-sex couples have the fundamental right to marry each other under the due process and equal protection clauses stated under the Fourteenth Amendment.

Significance of the case

This case widened the scope of legitimate marriages for same-sex couples throughout the United States.

Reed v. Town of Gilbert (2015)

In Reed v. Town of Gilbert, 576 U.S. (2015), an issue was raised as to whether or not an ordinance restricting the “size, number, duration, and location of temporary directional signs” was against the free speech clause of the First Amendment or the equal protection clause of the Fourteenth Amendment. The Court, by a 9-0 majority, ruled that the limitations levied were subject to strict scrutiny under the First Amendment as they were content-based restrictions or those restrictions that were applied in a different manner depending on the message of the sign.

Significance of the case

The decision taken with the agreement of the majority of judges reiterated that the signs, which were treated differently based on their content, were unconstitutional. This decision reconfirmed the principle of content discrimination as an animating principle of First Amendment law.

Matal v. Tam (2017)

In Matal v. Tam, 582 U.S. (2017), the Supreme Court held that one’s right to register a trademark cannot be denied as the mark denigrates or brings into contempt any living or dead person or association of persons, and that restricting the registration is against the right of free speech under the First Amendment.

Significance of the case

This case, by a unanimous decision of an 8-0 majority claimed that speech may not be restricted on the basis that it conveys ideas that are offensive. This case struck down a portion of the Lanham Act of 1946 as it infringed on the right to free speech.

Iancu v. Brunetti (2019)

In Iancu v. Brunetti, 588 U.S. (2019), an issue was raised as to whether Section 2(a) of the Lanham Act, which imposed restrictions on federal registrations of “immoral” or “scandalous” marks, was against the right of free speech under the First Amendment. Here, the Supreme Court gave its verdict in affirmation, and the judgment was pronounced by Justice Elena Kagan.

Significance of the case

This case struck down a portion of the Lanham Act of 1946 as it infringed on the right to free speech under the First Amendment.

The impact caused by judicial review : a timeline of landmark cases

Even though it is not easy to not overemphasize the impact of the Marbury case on the legal American system, there are several cases that have been overruled and federal or state statutes that have been struck down after passing the judgment in the Marbury case. Below are some of the most widespread cases, which are of historical importance and will help us look at the impact caused by judicial review.

Brown v. Board of Education 347 U.S. 483 (1954)

In this case, the Supreme Court rescinded state laws that mentioned that different schools be established for black and white students. The judgment mentioned that such a rationale is against the “equal protection” clause discussed in the Fourteenth Amendment.

Gideon v. Wainwright 372 U.S. 335 (1963)

In this case, the Supreme Court made it compulsory for states to assign counsel to poverty-stricken defendants in criminal cases. This applied to all those defendants who were allegedly charged and tried for committing a felony but did not have the means, money, or resources to have their own counsel.

Loving v. Virginia 388 U.S. 1 (1967)

In this case, the Supreme Court overruled a Virginia statute that prohibited interracial marriages on the grounds that these statutes were against the principles of due process of law and the equal protection clause stated under the Fourteenth Amendment.

Brandenburg v. Ohio 395 U.S. 444 (1969)

Here, the Supreme Court asserted that the laws of the state on criminal activity that penalized citizens for incitement will not be applied unless the speech was spoken with the intention to and likely to cause people to get into an “imminent lawless action”.

Furman v. Georgia 408 U.S. 238 (1972)

In this case, the Supreme Court declared that the death penalty is a violation of the Eighth Amendment, which forbids cruel and unusual punishment when it is imposed in a manner that is arbitrary and capricious, thus causing discrimination. The Supreme Court temporarily halted the death penalty in the US for a while.

Roe v. Wade 410 U.S. 113 (1973)

In this famous case, the Supreme Court overruled state laws that declared abortion to be illegal. It stated that a person may have the right to abortion until a fetus becomes “viable”, on the grounds of the right to privacy mentioned in the Due Process clause of the Fourteenth Amendment. Even though this case and several other subsequent cases have witnessed treading a tightrope in deciding how far the applicability of abortion goes, the fundamental concept of the right to have an abortion is safeguarded as a part of the right to privacy, thus keeping in mind the law of the land.

Buckley v. Valeo 424 U.S. 1 (1976)

In the case of Buckley v. Valeo (1976), the Supreme Court, in one of the landmark decisions on campaign finance, annulled the spending limit set on individuals and groups on campaign expenditures, expenditures by a candidate from personal resources, or independent expenditures by groups supporting the campaign, as the Court correlated money with speech in this context, so the clause on the First Amendment is applicable here. The Court also stated that the government has the authority to set limitations on how much individuals can contribute to political campaigns but not on the personal spending they contribute for propaganda.

Regents of the University of California v. Bakke 438 U.S. 265 (1978)

In this case, the Supreme Court overruled some types of racial preferences in the state college admissions as they violated the equal protection clause.

Lawrence v. Texas 539 U.S. 558 (2003)

In this case, the Supreme Court declared sodomy to be illegitimate in fourteen states of the United States, thus making the sexual activity of same-sex couples legal in these states.

Citizens United v. Federal Election Commission 558 U.S. 310 (2010)

In this case, the Supreme Court overruled a federal election law that imposed limitations on spending on advertising of political parties during elections by corporate groups and other organizations.

National Federation of Independent Business v. Sebelius (2012) 567 U.S. 519 (2012)

This case, commonly referred to as the “Obamacare” decision, was widespread for upholding most of the Patient Protection and Affordable Care Act. Moreover, it also overruled a provision of the law that posed a threat to withhold Medicaid funding from states that did not cooperate with the law, on the basis that this was an unconstitutional violation of states sovereignty.

Even though some of the above landmark cases remain controversial, none of these decisions would have been reached had there been no power for the judiciary to exercise judicial review. In all the cases, including the one mentioned above, the court has exercised its power of judicial review to determine whether an act by a federal or state government was null and void as a violation of any constitutional provision. It is this power that truly makes the courts a co-equal branch of government with the other two branches, i.e., the executive and the legislature. Further, this power enables the judiciary to defend and safeguard the rights of the people against potential intrusions by other branches.

Current scenario of judicial review in US

As mentioned above, the scope of judicial review in the United States widened only after the Marbury case. Further, in Reed v. Town of Gilbert (2015), which is discussed in detail above, an ordinance was passed regarding Gilbert Town that prohibited the display of some political signs, and the same was challenged by a church and its priest.

Justice Clarence Thomas, on behalf of the majority of the bench, affirmed that any such segregation drawn by the ordinance was not permissible. He further declared that all content-based laws will need the exact same form of judicial review and strict scrutiny. The Court further stated that content-based laws target speech on the grounds of its communicative content and that they are supposedly unconstitutional and may be defended only if the government proves that they are customized or shaped so as to serve the compelling interests of the state.

Judicial review during the COVID-19 era : a recap

During the COVID-19 period, the judiciary took several measures to safeguard the right to health of those participating in the processes of providing justice while simultaneously offering services to provide access to justice at the time of such a crisis. The announcement of an emergency and the development of crisis procedures across Latin America and the Caribbean as a reaction to the pandemic have had a huge impact on the actual functioning of the court.

Moreover, one of the most noteworthy impacts of the COVID-19 pandemic was oral arguments through teleconferences, which played a major role in encouraging people to form their opinions on several cases.

These COVID-19 related cases are known to have covered a broad array of important privileges, rights, and freedoms, ranging from voting procedures to abortion rights to matters relating to immigration to pension conditions, and have forced the court to dive into the difficult health and safety issues faced by the citizens of the nations and reach an inference. It must be noted that, in some matters, the Court has successfully reached a conclusion, whereas in others they have either issued a brief order or provided written opinions, and in others they have passed no judgment or taken no action whatsoever. There were some cases that were decided unanimously by the majority of judges, and there were some judgments that divided the court.

Criticism of judicial review

The concept of judicial review has received a lot of criticism in all nations, from the U.S.A. to the U.K. to India. Mentioned below are some of the criticisms.

It creates a conflict in separation of power.
It, at times, does not give regard or pay heed to the opinion of the public.
It is occasionally known to have served its own interests.
It is always assumed that the judiciary is always right, but there are instances where a judge’s opinion could be incorrect, and there are no provisions for redressal in such matters.

Conclusion

To sum up, we can say that the Constitution of the U.S.A., being the most rigid Constitution in the world, is succinct in nature, and the words and expressions are quite general in nature, but even then, it has played a major role in safeguarding the rights and freedom of the citizens of the U.S.A., one of them being the power to exercise judicial review.

Further, the twentieth century witnessed a lot of development in the judiciary department, especially, the principle of judicial review. Prior to the Marbury decision in 1890, there was hardly any concept of judicial review, and even if it were practiced it was quite unplanned and unsystematic. Only after the Marbury case did the concept of judicial review become concrete.

To conclude, we can say that judicial review in the United States of America, which is defined as the power of the courts to keep a check on the cavities of the legislative and executive branches of the government by scrutinizing whether these legislations or acts are in accordance with the clauses of the U.S. Constitution, is of utmost importance as the judicial branch is an independent branch of the government that keeps a check on other branches of the government through its powerful judicial practice of judicial review.

Frequently Asked Questions (FAQs) on judicial review

Does the Supreme Court of United States have the power to settle legal and moral issues through judicial review?

Yes, the Supreme Court of the United States has the power to strike down any legislation or action by the legislative or executive branches they deem unconstitutional or in violation of any provision of the U.S. Constitution. This power to exercise judicial review is applicable to all federal, state, and local legislative and executive actions; however, there is no explicit mention of the power of judicial review in the Constitution.

In which case was the concept of judicial review first introduced?

As mentioned numerous times above, the doctrine of judicial review was formulated for the first time by the Supreme Court of the United States in the landmark case of Marbury v. Madison in the year 1803. It must be noted that this case was ruled on by John Marshall, the then Chief Justice of the U.S. Supreme Court.

What role does the Supreme Court of the U.S.A. play in determining cases on judicial review?

The Supreme Court of the U.S.A. is entrusted with the power to claim that any legislative, executive, or governmental activity is unconstitutional or a violation of the provisions of the Constitution and that it is void.

Are decisions taken by the Supreme Court of U.S.A. binding?

Yes, all the decisions taken by the Supreme Court of the U.S.A. are binding on all the federal courts and state courts, especially when they involve constitutional interpretation.

Also, when the Supreme Court passes a judgment on any constitutional issue, that judgment is said to be final and can only be modified by a procedure of constitutional amendment or by passing a new ruling by the court; however, this process is rarely followed.

Can all state courts cases be reviewed judicially by the U.S. Supreme Court?

In the U.S.A., the Supreme Court can review a decision of the U.S. Court of Appeals, however, it is not obligatory for the Supreme Court to do so. Further, the Supreme Court is generally the final arbitrator when it comes to deciding federal constitutional questions. Only certain cases are eligible to be reviewed by the Supreme Court.

As per the Supreme Court, what is the major difference between enumerated powers and implied powers?

Enumerated powers are those powers that are explicitly given to the federal government, on the other hand, implied powers are not explicitly mentioned anywhere but are important for carrying out enumerated powers. Further, enumerated powers are explicitly mentioned in the Constitution, whereas implied powers are those powers that are crucial for carrying out enumerated powers. For instance, Congress has the enumerated power to deliver the mail, and so it has the implied power to hire people to perform the activity.

References

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