What Is Judicial Review? Marbury v. Madison and the Power to Strike Down Laws
Judicial review is the power of courts to determine whether laws and government actions are consistent with the Constitution. It was );font-size:1rem;max-width:640px;margin:0 0 8px;"> Judicial review is the power of courts to determine whether laws and government actions are consistent with the Constitution. It was established in 1803, is not explicitly mentioned in the Constitution, and is one of the most consequential features of American democracy.
What Judicial Review Is
Judicial review is the power of federal courts — and ultimately the Supreme Court — to determine whether federal and state laws, executive actions, and government conduct comply with the Constitution. If a court finds a law unconstitutional, it can declare it void and unenforceable.
This power is not explicitly stated in the Constitution. Article III establishes the federal judiciary and defines its jurisdiction but does not say courts can strike down laws. Chief Justice John Marshall inferred the power from the constitutional structure itself: if the Constitution is supreme law and courts are tasked with interpreting the law, then courts must be able to invalidate laws that conflict with the Constitution.
The doctrine was controversial when established in 1803 and has remained a source of political tension ever since. Critics argue that unelected, lifetime-appointed justices wielding the power to override elected legislatures is anti-democratic. Defenders argue it is essential for protecting individual rights and constitutional limits against majoritarian overreach.
Marbury v. Madison: How It Happened
The case arose in the political transition of 1801. Outgoing President John Adams, in his final days, appointed dozens of Federalist judges in what became known as the "midnight appointments." William Marbury was one of these appointees but his commission was not delivered before Adams left office.
Incoming President Thomas Jefferson, a Republican, instructed his Secretary of State James Madison to withhold the commissions. Marbury sued directly in the Supreme Court, arguing the Judiciary Act of 1789 gave the Court original jurisdiction to issue a "writ of mandamus" ordering Madison to deliver the commission.
Chief Justice John Marshall, himself a Federalist, faced a dilemma. If he ordered Madison to deliver the commission and Madison refused, the Court had no means of enforcement. Instead, Marshall ruled that while Marbury had a legal right to his commission, the section of the Judiciary Act granting the Supreme Court original jurisdiction over such cases was unconstitutional — it expanded the Court's jurisdiction beyond what Article III allowed. By ruling against his own political allies on narrow grounds, Marshall established the far more durable principle: the Supreme Court is the final interpreter of the Constitution.
Landmark Applications of Judicial Review
Dred Scott v. Sandford (1857)
The Court used judicial review to strike down the Missouri Compromise, which had limited slavery's westward expansion. Chief Justice Taney held that Black Americans were not citizens and had no right to sue in federal court. The decision accelerated the path to the Civil War and was ultimately overturned by the 14th Amendment.
Brown v. Board of Education (1954)
The Court unanimously struck down state-mandated school segregation as a violation of the Equal Protection Clause of the 14th Amendment, overturning the "separate but equal" doctrine of Plessy v. Ferguson (1896). Brown is often cited as the most consequential use of judicial review in the 20th century.
NFIB v. Sebelius (2012)
The Court upheld the Affordable Care Act 5-4, but Chief Justice Roberts's majority opinion struck down the ACA's individual mandate as it was framed under the Commerce Clause, upholding it instead as a tax. The decision illustrated how judicial review shapes not just whether laws survive but how they are understood and implemented.
Dobbs v. Jackson Women's Health (2022)
The 6-3 conservative majority used judicial review to undo prior judicial review: overturning Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), which had themselves used judicial review to establish abortion rights. Dobbs illustrates that judicial review cuts in multiple political directions over time as Court composition changes.
Frequently Asked Questions
What is the difference between judicial review and judicial activism?
Judicial review is the power itself; judicial activism is a characterization of how judges exercise that power. Critics label a decision "activist" when they believe judges are going beyond interpreting the law and are effectively making policy. In practice, both conservative and liberal justices have been accused of activism: liberals for expanding rights not textually in the Constitution (privacy, abortion); conservatives for striking down economic regulations and campaign finance laws. "Judicial restraint" refers to deference to legislative judgments and reluctance to strike down laws.
Can lower federal courts also strike down laws?
Yes. Any federal district court can hold a law unconstitutional in the context of a case before it. The ruling only applies within that court's jurisdiction initially, though it can be appealed. Circuit courts of appeals can also strike down federal and state laws within their circuit. Only the Supreme Court can issue a nationally binding ruling. This is why nationwide injunctions issued by single district courts (particularly in immigration and executive action cases) have become a major feature of modern constitutional litigation — a single judge can temporarily block a federal policy pending appeals.
What happens when the president disagrees with a judicial review ruling?
Historically, presidents have complied with Supreme Court rulings even when strongly disagreeing. President Truman complied with Youngstown Sheet & Tube Co. v. Sawyer (1952), which struck down his seizure of steel mills. President Nixon complied with the Court's order to release the White House tapes. In the Trump second term, several incidents of executive officials questioning or delaying compliance with court orders have created new tensions about the limits of executive compliance with judicial review, raising questions about enforcement mechanisms and the rule of law.
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