Significance: The Court's most important and controversial power is not mentioned explicitly in the U.S. Constitution but is implied by the notion of a written constitution and the rule of law.
The Supreme Court's power of judicial review is in one sense unexceptional, but in another, radically controversial. The Court's power derives from the principle of uniformity necessary to maintain a common-law court system of the kind that evolved out of the British experience. The word, “common” in common law means uniform across the country. This uniformity is achieved by having appellate courts resolve conflicts from lower courts. The Court departed from that experience by claiming in addition that laws passed by Congress and signed by the president could also be declared unconstitutional if they did not conform to the principles in a transcendent legal document: the U.S. Constitution. The British legal system does not use this idea because there is no authoritative document that can be used for purposes of comparison in declaring laws unconstitutional. Rather its view is that the authority of the “monarch in parliament” is absolute, and courts may not overturn its enactments. Although the British Law Lords occasionally set aside the impact of parliamentary enactments through interpretation, such results are comparatively minor and quite rare. The Court's power of judicial review is important because it places the Court potentially and by elaboration in a position to govern the entire country unless the Court exercises self-restraint. In principle, judicial review could give the Court a nearly absolute veto over actions of any level of the government because of the difficulty of amending the Constitution. The rigidity of the amendment process leaves the Court generally as a sole interpreter of the Constitution. The Court also claims that it can declare state constitutional provisions and state enactments unconstitutional. These powers of judicial review can be logically separated into actions declaring coordinate national branches unconstitutional and cases voiding actions of subordinate state governments. The power over state constitutions and state laws, although controversial at many times in history, can be justified by reference to Article VIII of the U.S. Constitution, which explicitly states that the Constitution and laws and treaties of the United States constitute the “supreme law of the land” regardless of anything in state laws to the contrary. No such explicit words exist to allow the Court to declare coordinate national branch actions unconstitutional, but such declarations of unconstitutionality have been made repeatedly over the last two hundred years.
Origins of Judicial Review
If the power of judicial review is not explicit in the Constitution, it is reasonable to ask how the Court can claim it. It is generally accepted that the earliest authoritative legal assertion of the Court's power of judicial review occurred in the case of Marbury v. Madison (1803). In his opinion for the Court, Chief Justice John Marshall wrote that the Court's power of judicial review was unquestioned. There was, in fact, a considerable justification for Marshall's assertion. Most fundamentally, if the written Constitution were to have meaning, some authoritative way of interpreting it must have been intended by its Framers. Without some form of judicial review, there would be no way to police boundaries separating the branches of the national government or those separating the federal and state governments. Chaos might ensue if everyone interpreted the document individually. Judicial review is thus an element in enforcing the rule of law in the U.S. system of government. Marshall could also point to several precedents (an extremely important feature in common law) as well. The old British privy council exercised judicial review in voiding acts of colonial legislatures, so the idea was not entirely alien to Anglo-Saxon law. Marshall himself would not have used such a controversial example because some of the reasons that led to American independence were concerns that the government in London had invalidated laws duly passed by the colonial legislatures. More compelling were the eight instances before 1789 of state courts invalidating acts of their own state legislatures as having violated their own state's constitution. Such an exercise of judicial review is strongly analogous to the Supreme Court power to declare actions of coordinate branches of national government unconstitutional. Research by constitutional scholars and historians has established that at least twenty-five of forty delegates to the 1787 Constitutional Convention favored some form of judicial review. Moreover, eight of the state conventions that afterward ratified the Constitution discussed and accepted judicial review as one of the principles. Before Marbury v. Madison, in Hylton v. United States (1796), both parties (and the Court itself) acted as if the Court had the authority to declare law unconstitutional, even though the Court upheld the law in this case. In Calder v. Bull (1798), individual justices asserted the right of judicial review, but the use of seriatim opinions in that case kept their rulings from being authoritative. Thus, Marbury v. Madison remained the authoritative case in which the Court declared a duly enacted national law unconstitutional. The lack of any effective opposition by the other branches reinforced the Court's assertion of judicial review.
The Scope of Judicial Review
If some form of judicial review was justified, the kind and scope of judicial review were still in doubt, and here the Supreme Court's power of judicial review has remained controversial. Notwithstanding the clear language of Article VI, even the Court's exercise of judicial review over state enactments and actions has been controversial. Early in U.S. history, Presidents Thomas Jefferson and James Madison and their supporters claimed state legislatures could interpose their own interpretation of the Constitution over the Court's interpretation. Throughout U.S. history in various forms, state authorities objected, particularly when state constitutional provisions were overturned. Even in the late twentieth century, state authorities and their supporters objected when the Court invalidated state constitutional provisions on reapportionment or a wide range of segregation provisions in state constitutions, relating to public education and many other matters. However, despite political criticism, the Court's authority to use judicial review to invalidate states laws withstood the test of time. The Court has been willing to declare thousands of such state provisions and enactments invalid. The Court has exercised the greatest care in using judicial review in the highly controversial arena of invalidating national legislation or other actions of national government. Because of lack of explicit authority in the Constitution itself, the Court has maintained this part of judicial review only by exercising self-restraint. The lack of explicit authority has no doubt been among reasons why in more than two hundred years only about 150 national enactments and actions have been declared unconstitutional. Still the Court's restraint in striking down actions of coordinate branches of national government has not been sufficient to avoid controversy. Indeed, the entire controversy over judicial activism versus self-restraint has to do with the exercise of judicial review. If the Court had been completely self-restrained, it would never have declared any action of national government to be unconstitutional. Neither the controversy nor this significant form of judicial review would exist. This might well have led to criticism that the Court failed to do its job as guardian of the Constitution. Some controversy over action is inherent in any power of judicial review over other coordinate national branches.
The issue of judicial activism versus restraint does not fall clearly along liberal and conservative lines. Political liberals tend to become more active on some subjects and more restrained on others. Conservatives who are normally expected to support judicial restraint have been activists on some issues at various points in U.S. history. Other controversies have flowed from the Court's exercise of judicial review. The debate over the extent to which due process should be considered either substantive or procedural bears directly on the issue of judicial review. This issue itself mixes with the question of judicial activism and self-restraint, but it also is a subject of judicial review. After the Civil War, with the addition of the Thirteenth, Fourteenth, and Fifteenth Amendments, other controversies arose over the Court's exercise of judicial review. The Fourteenth Amendment's promise of “due process” and “equal protection” raised particularly important questions as to the degree to which other sections of the Constitution, such as the Bill of Rights, applied to the states as well as the federal government. The question of total or selective incorporation of the Bill of Rights and its application to the states turned partly on the question of judicial review. Significant policy issues have fallen within the controversial purview of judicial review. For a long period, the question was whether the Court could exercise judicial review by striking down state and federal economic regulations. Using either the contract clause for the states or the commerce clause for the federal government, the Court pushed its own power of judicial review to the point that some feared it might become a board of economists who determined the future of all economic regulations. Arguably the Court was expanding the scope of judicial review dramatically by these decisions. Although the Court substantially abandoned its interference with economic regulations by the 1930's, it expanded its judicial review of other areas, such as civil liberties and rights, creating extensive controversy over the last two-thirds of the twentieth century. The Court's judicial review power is also inherent in the controversy over the scope of the federal government. When Congress and the president expanded the federal government's power into areas previously belonging to the states and individuals, that expansion fell within the purview of the Court's judicial review power. The Court's judicial review power generally parallels the growth of the power of the federal government. More than simple enlargement, the form of the enlargement has also been controversial. The Court's judicial review power is fundamental to the rule of law in American society. One principle of the rule of law is that law should be knowable and predictable. From this, the Court has derived the principle that enactment should not be overbroad or vague and, therefore, unpredictable. Although the Court has exercised judicial review in declaring some laws void for vagueness, the Court's judicial restraint has kept it from striking a whole range of increasingly vague enactments. Closely related and still more controversial is the issue of whether the Court should strike down Congress's vague delegations of lawmaking power to bureaucratic agencies. If the power of judicial review were said to be definitive, it would seem that the Court could easily declare that Congress improperly delegated the fundamental legislative power in violation of Article I of the U.S. Constitution. When the Court took this position in the 1930's by invalidating Congress's New Deal enactments, it provoked a strong controversy. President Franklin D. Roosevelt threatened to flood the Court with new members who would force it to abandon judicial review in this arena. The Roosevelt administration ultimately backed away from this constitutional exercise of its power for political reasons. Faced with Roosevelt's Court-packing plan, the Court withdrew from the confrontation without ever overturning explicitly its decisions. The Court simply stopped exercising judicial review over vague delegations of power by Congress. As a result, the number of vague delegations of power to administrative agencies has increased dramatically. The absence of the Court's exercise of judicial review is thought by some to be a major weakness in the current system. Another aspect of judicial review is the difference between the Court when it acts as a statutory as opposed to constitutional interpreter. When the Court interprets statutes said to be at variance with the Constitution, it is authoritative unless the Constitution is amended, which is not an easy task. The Court has generally, but not unanimously, agreed to exercise this power with great care. The 1973 Roe v. Wade abortion decision is a prime example of how controversial this power remains in U.S. society. When the Court uses judicial review to interpret statutes passed by Congress, there is an easier check on its power because Congress may presumably amend the statute and repair an interpretation placed on the statutes by the Court. The Court has been freer to exercise judicial review in statutory interpretation, knowing that a relatively easy remedy to repair the result exists. Still this entire area is another example of the controversy that flows from the power of judicial review.
Limits on Power
In principle, the Court's power is not absolute. The Court can be overturned by amendment. Such amendments have occurred, but because of the difficult amending process, they are rare. At various times in its existence, the Court rendered decisions with which the vast majority of American people disagreed but were unable to pass a corrective constitutional amendment, through either Congress or the states. Congress could exercise restraint on the Court by reducing its jurisdiction. However, the prestige of the Court and fears of political interference with the Court's power by Congress and the president have led to great restraint on the part of coordinate branches of the government. The jurisdiction of the Court has withstood attacks by Congress and the president in this area. A still more dramatic restraint flows from Congress's authority to determine how many justices sit on the Court. Congress and the president have the power to determine the total number of justices by ordinary legislative enactment. This power could be significant because if the Court rendered a controversial decision by five to four, the addition of just two new justices could potentially reverse that decision, assuming there were no other changes of mind or members. Nonetheless, the experience of Roosevelt's administration in attempting to pack the Supreme Court by adding justices demonstrated that this is a politically difficult step to take.
An International Perspective
The Court's important and controversial power of judicial review is a significant contribution of the U.S. political system to the global system of governance. Particularly since World War II, concerns developed that democracy defined as pure majority rule has led to totalitarian governments. Because many European governments came to view the United States’ protection of minority rights along with majority rule as cardinal principles of democracy, constitutions and authoritative courts to interpret them have become more popular. Starting with their immediate post-World War II constitutions, Germany, Japan, and Italy created constitutional courts with the power to declare ordinary laws unconstitutional. That is to say, these courts were given the power of judicial review. Subsequently France, Ireland, and Israel added analogous constitutional courts. Following the American example, rather than that of Great Britain, Canada and South Africa adopted their own courts to interpret their governmental charters. The creation of a European union required a court to interpret the provisions of the charters or treaties founding that union, and therefore, the European Court of Justice was created. The European Convention on Human Rights led to the creation of the European Court of Human Rights. In the wake of the collapse of the Soviet Union and the satellite countries in Europe, there was a call for the rule of law in those countries. In many respects the rule of law can be best protected by a written constitution and a court of last resort with the authority to declare ordinary enactments and actions of governments to be at variance with that constitution and therefore unconstitutional. Several of these countries wrote constitutions and adopted courts to interpret them. Although their success or failure cannot be determined yet, the Court's power of judicial review clearly had an effect on ideas of proper governance in many countries far from its shores. In some senses, the power of judicial review may be said to be more important and a more important contribution to government than the creation of legislatures or other democratic institutions.
- Two excellent works with which to begin a study of judicial review are Larry D. Kramer's The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2005) and Judicial Review and Judicial Power in the Supreme Court, edited by Kermit L. Hall (New York: Garland, 2000). From among the voluminous literature on judicial review, readers might profitably begin with Henry J. Abraham's The Judicial Process (6th ed., New York: Oxford University Press, 1993). Edward S. Corwin left two classic works that are still widely read: The Higher Law Background of American Constitutional Law (Ithaca, N.Y.: Cornell University Press, 1929) and Court over Constitution: A Study of Judicial Review as an Instrument of Popular Government (Princeton, N.J.: Princeton University Press 1938). Alexander Hamilton made a strong case for giving the Court the power of judicial review in essay No. 78 in The Federalist (1788), which is available in many editions. Abraham Lincoln expressed his view on the relationship between judicial review and popular sovereignty in his first inaugural address, which is also available in many works. James B. Stoner, Jr., offers an excellent recent history of the long and contentious history of judicial review in Coke, Hobbes, and the Origins of American Constitutionalism (Lawrence: University Press of Kansas, 1992). A popular liberal view of judicial review is available from John Hart Ely in his Democracy and Distrust: A Theory of Judicial Review (Cambridge, Mass: Harvard University Press, 1980). For a more conservative view, see Christopher Wolfe's The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law (New York: Basic Books, 1986). Sylvia Snowiss's Judicial Review and the Law of the Constitution (New Haven, Conn.: Yale University Press, 1990) shows how John Marshall redefined judicial review, while persuading his contemporaries that he was simply following precedent. Jesse Choper's Judicial Review in the National Political Process (Chicago: University of Chicago Press, 1980) argues that the case for judicial review is stronger when the Court is restrained than when it is active.