- Grades: 6–8, 9–12
Judicial review is the power of courts to decide the validity of acts of the legislative and executive branches of government. If the courts decide that a legislative act is unconstitutional, it is nullified. The decisions of the executive and administrative agencies can also be overruled by the courts as not conforming to the law or the Constitution.
The U.S. Constitution does not explicitly mention judicial review. The power was first asserted by Chief Justice John Marshall in 1803, in the case of Marbury v. Madison. Relying in part on Alexander Hamilton's writings in The Federalist, no. 78, Marshall asserted that the judiciary logically and of necessity had the power to review congressional and executive actions. This follows from the premise (stated in Article VI of the U.S. Constitution) that the Constitution is the supreme law of the land and that courts, in deciding cases, must be able to make final and binding interpretations of the law. Subsequently the states adopted the same view, and their superior courts commonly nullify acts of legislatures or governors that conflict with the state constitutions.
Constitutions adopted by other countries, such as Germany, Italy, India, and Pakistan, often provide for some form of judicial review. Great Britain does not recognize judicial review; the final authority in British law is Parliament.
In exercising their power, justices of the U.S. Supreme Court have sometimes been accused of writing their own political views into the Constitution. Their overturning of some of the New Deal legislation of the 1930s brought proposals to reorganize the Court. For this reason, some justices have urged the Court to be restrained in exercising its power. The Court generally observes the principle that any attack upon the validity of a statute must overcome a presumption of its constitutionality. The Court has also stated that it will not judge the wisdom of particular legislative and executive actions and will avoid political questions, but these principles have been interpreted differently by different justices.
Bibliography: Hall, K.L., ed., Judicial Review in American History (1987).