What is judicial review?
Judicial review is the power of courts to examine the actions of the legislative and executive branches and to declare a law or government action unconstitutional and therefore unenforceable, a power that in the United States federal system is not explicitly stated in the Constitution but was established through early Supreme Court precedent.
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Core tenets
- Courts assess constitutionality
- Judicial review allows courts to determine whether a law or government action complies with the constitution, rather than simply applying laws as written without question.
- Power to invalidate
- A court exercising judicial review can declare a law or action unconstitutional, rendering it unenforceable, though it does not itself repeal the law from the statute books.
- Established through precedent in the United States
- The specific federal power of judicial review was established by the Supreme Court's own 1803 decision in Marbury v. Madison, rather than stated explicitly in the constitutional text.
How it works in practice
Judicial review operates differently across countries, with some explicitly granting the power in a written constitution and others, like the United States federal system, establishing it primarily through judicial precedent.
- Constitutional review of statutes
- Courts assess whether a specific law, as passed by the legislature, is consistent with the constitution.
- Review of executive action
- Courts also assess whether specific actions taken by the executive branch, not only statutes, comply with constitutional and statutory requirements.
What it is often confused with
Judicial review is sometimes confused with an appellate court simply reviewing a lower court's decision for legal error; judicial review specifically concerns assessing a law or government action against the constitution, a distinct and often higher-stakes function.
Criticisms and debates
Debate over judicial review centers on whether it gives unelected judges too much authority over policy questions properly left to elected branches.
Countermajoritarian critique
Argues that allowing unelected judges to invalidate laws passed by elected representatives transfers significant political power to an institution with no direct democratic accountability.
Response: Defenders argue that judicial review is itself typically grounded in a constitution adopted through a more fundamental democratic process, and that protecting constitutional limits from ordinary majority override is precisely the judiciary's intended role.
Judicial restraint versus activism debate
Legal scholars debate how broadly or narrowly courts should exercise judicial review, with some favoring deference to elected branches except in clear constitutional violations, and others favoring more active judicial scrutiny of legislative and executive action.
Response: This is treated as an active, ongoing legal and philosophical debate about the proper scope of judicial review, not a dispute over whether the power itself is legitimate.
Historical examples
- Marbury v. Madison, 1803
- The foundational United States Supreme Court decision that established the federal judiciary's power of judicial review, though the Constitution does not explicitly grant it.
Sources
- 1.Marbury v. Madison, 5 U.S. 137 (1803).
- 2.Stanford Encyclopedia of Philosophy. Judicial Review.
- 3.Encyclopaedia Britannica. Judicial review.