The nature of judicial review

Preparing for the MBE Exam requires a thorough understanding of the nature of judicial review, a fundamental principle in constitutional law. Mastery of judicial review encompasses its origins, applications, and limitations within the judiciary, highlighting how courts interpret and enforce constitutional principles. This knowledge is critical for excelling on the MBE.

Learning Objective

In studying “The Nature of Judicial Review” for the MBE Exam within Constitutional Law, you should learn to understand the principles and historical foundations of judicial review, including Marbury v. Madison and the role of courts in interpreting constitutional provisions. Evaluate how judicial review empowers courts to strike down unconstitutional laws and government actions. Analyze the limitations and scope of judicial review and its application across different branches and levels of government. Explore landmark Supreme Court decisions that demonstrate the power of judicial review, and apply your knowledge to legal scenarios and MBE practice questions that test constitutional law concepts.

Principles and Historical Foundations of Judicial Review

1. Historical Context and Origin: Judicial review, the ability of courts to examine and potentially invalidate legislative and executive actions that conflict with the Constitution, has its roots in early American jurisprudence. The establishment of judicial review is most notably attributed to the landmark U.S. Supreme Court case Marbury v. Madison (1803). This case arose during a politically charged period when William Marbury petitioned the Supreme Court to compel Secretary of State James Madison to deliver his commission as a justice of the peace. Chief Justice John Marshall’s ruling in this case was transformative. Marshall declared that it was the judiciary’s duty to interpret and apply the law, asserting that “a law repugnant to the Constitution is void.” This ruling established the judiciary as an independent arbiter capable of checking the legislative and executive branches by invalidating unconstitutional laws and actions, effectively introducing the concept of judicial review into American law.

The origins of judicial review were not limited to Marbury v. Madison. Before this landmark ruling, the idea that courts had a duty to strike down unconstitutional laws was present in colonial and state courts, influenced by the British legal tradition and writings of Enlightenment thinkers such as Montesquieu, who emphasized separation of powers. However, Marbury v. Madison formally cemented the concept as a cornerstone of the U.S. judicial system, solidifying the judiciary’s role as a co-equal branch of government.

2. Purpose and Function of Judicial Review: The primary purpose of judicial review is to ensure that all laws and governmental actions comply with the Constitution, the supreme law of the land. By exercising this power, the judiciary acts as a guardian of constitutional principles, preserving individual liberties, maintaining governmental checks and balances, and upholding the rule of law. Judicial review functions as a mechanism through which courts evaluate whether the actions of the executive and legislative branches exceed their constitutional limits. When the courts find that a statute or government action conflicts with the Constitution, they have the authority to nullify it, ensuring adherence to constitutional norms.

The judiciary’s role in judicial review extends to interpreting constitutional provisions and applying them to contemporary legal issues. This interpretive function is essential because it clarifies the meaning of the Constitution’s often broad and general language, adapting it to new and unforeseen challenges. For instance, in cases involving civil rights, privacy, and freedom of speech, the courts have used judicial review to protect individual rights against encroachments by other branches of government or by state actors.

3. Key Influences and Evolution: The concept and application of judicial review have evolved significantly since its inception. The exercise of judicial review has been influenced by historical, social, and political changes, as well as by shifts in judicial philosophy. For example, during the Civil War and Reconstruction periods, judicial review was used to address issues of slavery, civil rights, and the scope of federal power. The judiciary’s role during these critical periods shaped national policy and solidified its position as a powerful interpreter of constitutional law.

Throughout U.S. history, various landmark Supreme Court decisions have demonstrated the evolving nature of judicial review. Cases like Brown v. Board of Education (1954), which declared racial segregation in public schools unconstitutional, reflect the court’s role in social change. The judicial philosophy underlying the exercise of judicial review has also been a subject of debate, with different justices advocating for “strict constructionism” or “judicial activism,” influencing how judicial review is applied to modern issues.

4. Importance of Judicial Independence: For judicial review to function effectively, judicial independence is paramount. Courts must be free from political influence and pressure to render impartial decisions based solely on constitutional principles and the rule of law. An independent judiciary ensures that the government remains accountable and that citizens’ rights are protected. The ability of courts to strike down laws and government actions that violate constitutional protections demonstrates the judiciary’s critical role in maintaining democratic governance and safeguarding individual freedoms.

Scope and Application of Judicial Review

1. Definition and Purpose: Judicial review is the power of courts to assess the constitutionality of legislative acts and executive actions. Its primary purpose is to ensure that government actions comply with constitutional principles and to prevent any branch of government from exceeding its authority. Judicial review functions as a check on the legislative and executive branches, maintaining the balance of power outlined in the U.S. Constitution and protecting individual rights.

2. Scope of Judicial Review: The scope of judicial review extends across multiple levels of government and varies depending on the jurisdiction and constitutional framework in question. In the United States, judicial review is conducted at both the federal and state levels. It encompasses a wide range of government actions, including:

• Legislative Acts: Courts have the authority to review statutes passed by Congress or state legislatures to determine whether they violate constitutional provisions. If a law is found unconstitutional, it is declared null and void.
• Executive Actions: Judicial review also applies to executive orders, regulations, administrative rulings, and actions taken by the President, governors, or other executive officials. Courts evaluate whether these actions exceed the scope of executive authority or infringe on constitutional rights.
• State Laws and Actions: State courts have the power to apply judicial review to state laws, and federal courts may also review state laws that are challenged as being in conflict with the U.S. Constitution or federal statutes.

3. Judicial Review in Federal and State Courts: The power of judicial review is not exclusive to the federal judiciary; it is also exercised by state courts within their respective jurisdictions. While federal courts address issues involving federal constitutional and statutory law, state courts can review state laws for consistency with both the state constitution and the federal Constitution. When a state law conflicts with federal law, the Supremacy Clause of the U.S. Constitution provides that federal law takes precedence, allowing federal courts to overturn conflicting state statutes.

4. Application Across Different Branches of Government: Judicial review serves as a critical mechanism for maintaining the separation of powers among the legislative, executive, and judicial branches. By reviewing and potentially invalidating acts of the legislative and executive branches that violate the Constitution, the judiciary ensures that no branch oversteps its boundaries or infringes upon constitutional rights. The application of judicial review extends to a wide range of cases, including those involving civil rights, criminal law, economic regulation, and administrative law.

5. Limitations and Boundaries of Judicial Review: While judicial review is a powerful tool, it is not without its limitations. Courts are bound by several doctrines and principles that restrict when and how they can exercise this power:

• Justiciability Doctrines: Courts can only hear cases that present actual, live disputes. Issues such as standing (requiring a direct stake in the case), ripeness (preventing premature adjudication), and mootness (cases that are no longer relevant) determine whether a court may review a case.
• Political Question Doctrine: Courts may decline to hear cases that involve political questions best addressed by the legislative or executive branches.
• Judicial Restraint: Judges may choose to exercise judicial restraint, avoiding decisions that strike down laws unless absolutely necessary. This approach is intended to respect the roles of the other branches of government and maintain stability.

Limitations and Challenges of Judicial Review

1. Justiciability Doctrines: The exercise of judicial review is limited by several doctrines that determine which cases courts may adjudicate. These include:

• Standing: Courts will only hear cases brought by individuals who have a direct, personal stake in the outcome. This requirement prevents courts from ruling on hypothetical or abstract legal issues.
• Ripeness: A case must present a dispute that has fully developed, rather than a potential or premature conflict. Courts avoid issues that depend on future events that may never occur.
• Mootness: Courts will not hear cases in which the issues have already been resolved or are no longer relevant. An exception to this rule is cases involving issues that are “capable of repetition yet evading review.”
• Political Question Doctrine: Courts refrain from hearing cases that involve issues deemed more appropriate for resolution by the legislative or executive branches, such as foreign policy and impeachment proceedings.

These doctrines collectively ensure that courts only rule on genuine, justiciable controversies, limiting their role in political or theoretical debates.

2. Judicial Restraint vs. Judicial Activism: Another limitation of judicial review is the philosophy of judicial restraint, where judges opt to limit their own power by deferring to the decisions of the legislative and executive branches unless a clear constitutional violation exists. Judges exercising restraint avoid striking down laws or policies unless absolutely necessary, emphasizing respect for democratically enacted laws and avoiding judicial overreach.

In contrast, judicial activism refers to judges taking a more active role in shaping policy by interpreting the Constitution more expansively. While some view judicial activism as a necessary response to injustice or evolving social norms, others see it as an overstepping of judicial authority, creating tension and debate about the proper scope of judicial review.

3. Lack of Enforcement Power: The judiciary relies on the executive branch to enforce its decisions. This limitation means that even if a court rules that a law or action is unconstitutional, the effectiveness of that ruling depends on the willingness of the executive branch to implement it. For example, historical instances such as President Andrew Jackson’s refusal to enforce the Supreme Court’s decision in Worcester v. Georgia highlight the judiciary’s dependence on other branches for compliance.

4. Separation of Powers and Checks and Balances: The principle of separation of powers creates natural constraints on judicial review. The legislative and executive branches can respond to judicial decisions through mechanisms such as:

• Amending the Constitution: Congress and the states can overturn judicial rulings by amending the Constitution, as seen with the Eleventh Amendment, which reversed a Supreme Court decision.
• Changing the Composition of the Court: The President’s power to nominate and the Senate’s role in confirming judges influence the judiciary’s ideological balance.
• Legislative Action: Congress can pass new laws or modify existing ones to counteract judicial decisions or clarify statutes, effectively responding to or limiting judicial rulings.

5. Criticisms and Debates on Legitimacy: Judicial review has faced criticism from both legal scholars and political actors, raising questions about its legitimacy and the judiciary’s role in a democratic society. Some critics argue that unelected judges wield excessive power by overturning democratically enacted laws, undermining popular sovereignty. This tension between judicial independence and democratic accountability is a recurring challenge in the exercise of judicial review.

Moreover, public perception can influence the judiciary’s effectiveness. Courts must maintain public trust to function effectively, as their authority ultimately depends on societal respect for their decisions. Controversial rulings can sometimes lead to criticism or backlash, creating challenges for judicial legitimacy and the balance of power among the branches of government.

6. Political and Social Constraints: The judiciary does not operate in isolation from political and social contexts. Judicial decisions are often shaped by and responsive to prevailing social norms, political pressures, and cultural changes. Courts may face public criticism or political pushback when ruling on contentious issues, influencing the scope of judicial review. For example, landmark decisions such as Roe v. Wade and Obergefell v. Hodges have been met with both strong support and significant opposition, reflecting the challenges courts face in addressing socially and politically charged matters.

7. Complexity of Legal Issues: Modern legal issues are increasingly complex, involving intricate regulatory schemes, international law, and evolving technology. Courts must interpret and apply constitutional principles to new challenges, often requiring expertise beyond traditional legal concepts. The complexity of these issues can make judicial review more challenging, as judges must balance constitutional mandates with practical considerations and evolving norms.

Landmark Supreme Court Decisions Demonstrating Judicial Review

1. Marbury v. Madison (1803): This case established the principle of judicial review in the United States. When William Marbury petitioned for a writ of mandamus to compel the delivery of his judicial commission, Chief Justice John Marshall ruled that while Marbury was entitled to his commission, the provision of the Judiciary Act of 1789 enabling him to bring the claim to the Supreme Court was unconstitutional. This decision marked the first time the Supreme Court declared a law passed by Congress to be unconstitutional, firmly establishing the judiciary’s role in reviewing the constitutionality of legislative acts.

2. Brown v. Board of Education (1954): In this landmark case, the Supreme Court declared racial segregation in public schools unconstitutional, overturning the precedent set by Plessy v. Ferguson (1896), which had upheld “separate but equal” facilities. The Court, led by Chief Justice Earl Warren, ruled that segregation violated the Equal Protection Clause of the Fourteenth Amendment. This decision demonstrated judicial review’s power to overturn state laws and policies, fundamentally transforming the legal and social landscape by ending de jure racial segregation in education and serving as a catalyst for the Civil Rights Movement.

3. Roe v. Wade (1973): The Supreme Court, in this controversial case, held that a woman’s right to choose to have an abortion fell within the right to privacy protected by the Due Process Clause of the Fourteenth Amendment. The decision effectively invalidated many state laws restricting abortion, asserting judicial authority to strike down statutes inconsistent with constitutional rights. By applying judicial review to issues of reproductive rights, the Court underscored its role in addressing and shaping contemporary social issues.

4. Miranda v. Arizona (1966): This case established the Miranda rights, requiring that individuals taken into police custody be informed of their rights to an attorney and against self-incrimination before being interrogated. The Supreme Court ruled that the Fifth Amendment protection against self-incrimination extended to individuals in police custody, and that failure to inform them of these rights made any self-incriminating statements inadmissible in court. This decision showcased the judiciary’s power to enforce constitutional rights against government practices, changing law enforcement procedures nationwide.

5. United States v. Nixon (1974): In this case, the Supreme Court unanimously ruled that President Richard Nixon had to comply with a subpoena to produce tapes and documents related to the Watergate scandal. The Court rejected Nixon’s claim of executive privilege, asserting that no person, not even the President, is above the law. This decision demonstrated judicial review’s ability to check executive power, reinforcing the principle of separation of powers and the rule of law.

6. Obergefell v. Hodges (2015): This case extended the right to marry to same-sex couples under the Fourteenth Amendment’s Equal Protection and Due Process Clauses. The Supreme Court ruled that state bans on same-sex marriage were unconstitutional, thereby guaranteeing marriage equality nationwide. This decision exemplified the judiciary’s role in recognizing and enforcing civil rights through the application of judicial review.

7. Citizens United v. Federal Election Commission (2010): The Supreme Court ruled that restrictions on independent political expenditures by corporations and unions were unconstitutional under the First Amendment’s free speech clause. This decision struck down parts of the Bipartisan Campaign Reform Act (BCRA) and changed the landscape of political campaign financing, emphasizing the power of judicial review to reshape public policy and regulatory frameworks.

8. Loving v. Virginia (1967): The Supreme Court struck down state laws banning interracial marriage, ruling that they violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment. This decision demonstrated judicial review’s capacity to eliminate discriminatory state laws and reinforce individual rights.

9. Bush v. Gore (2000): In this controversial decision, the Supreme Court effectively resolved the 2000 presidential election by halting a Florida vote recount, citing equal protection concerns. The decision underscored the Court’s ability to intervene in politically charged disputes with nationwide implications, using judicial review to address election laws and procedures.

10. District of Columbia v. Heller (2008): The Supreme Court held that the Second Amendment protects an individual’s right to possess firearms for self-defense within the home. This decision struck down a D.C. handgun ban, demonstrating judicial review’s role in interpreting constitutional amendments and their implications for modern issues.

Examples

Example 1: Establishing Judicial Review (Marbury v. Madison)

Description: The landmark case of Marbury v. Madison (1803) established the principle of judicial review, empowering the judiciary to declare laws unconstitutional. Chief Justice John Marshall’s decision underscored the judiciary’s role as a co-equal branch of government capable of interpreting constitutional law.

Example 2: Judicial Review and Civil Rights (Brown v. Board of Education)

Description: In Brown v. Board of Education (1954), the Supreme Court used judicial review to overturn state laws enforcing school segregation, ruling them unconstitutional under the Equal Protection Clause. This decision demonstrated the judiciary’s role in upholding individual rights and promoting social change through judicial review.

Example 3: Balancing Executive Power (United States v. Nixon)

Description: United States v. Nixon (1974) exemplified judicial review’s role in checking executive power. The Supreme Court ruled that President Nixon must comply with a subpoena to release tapes related to the Watergate scandal, affirming that no person, including the President, is above the law.

Example 4: Right to Privacy (Roe v. Wade)

Description: In Roe v. Wade (1973), the Supreme Court utilized judicial review to declare restrictive state abortion laws unconstitutional, establishing a woman’s right to privacy under the Fourteenth Amendment. This case highlighted judicial review’s capacity to interpret constitutional rights in the context of social issues.

Example 5: Campaign Finance Regulation (Citizens United v. FEC)

Description: The Supreme Court’s decision in Citizens United v. Federal Election Commission (2010) applied judicial review to strike down restrictions on corporate political expenditures, ruling they violated the First Amendment’s free speech protections. This decision demonstrated judicial review’s influence on political and electoral law.

Practice Questions

Question 1

Which of the following cases established the principle of judicial review in the United States?

A) Plessy v. Ferguson
B) Marbury v. Madison
C) Brown v. Board of Education
D) United States v. Nixon

Answer: B) Marbury v. Madison

Explanation:
The landmark case Marbury v. Madison (1803) established the principle of judicial review in the United States. In this case, Chief Justice John Marshall declared that it is the judiciary’s role to interpret the Constitution and invalidate laws that conflict with it. This case marked the first time the Supreme Court declared a law passed by Congress as unconstitutional, solidifying the judiciary’s power to review and potentially nullify legislative and executive actions that violate the Constitution. Other cases such as Plessy v. Ferguson and Brown v. Board of Education addressed different legal issues, and United States v. Nixon dealt with executive privilege, not the establishment of judicial review.

Question 2

Which of the following is a limitation placed on the exercise of judicial review?

A) Courts can overturn any law, regardless of relevance to the Constitution.
B) Judicial review is only applied to federal laws.
C) Courts can only hear cases with actual, live disputes.
D) Judges must seek the approval of Congress before issuing rulings.

Answer: C) Courts can only hear cases with actual, live disputes.

Explanation:
Judicial review is subject to various limitations, one of which is that courts can only hear cases that present genuine, live disputes. This is part of the justiciability doctrines, which prevent courts from issuing advisory opinions on hypothetical or abstract legal issues. Options A and D are incorrect as they do not reflect the actual limitations of judicial review. Option B is incorrect because judicial review applies to both federal and state laws.

Question 3

The Supreme Court decision in Brown v. Board of Education (1954) is a significant example of judicial review because it:

A) Upheld state laws requiring racial segregation in public schools.
B) Limited the power of Congress to enact civil rights legislation.
C) Declared that “separate but equal” educational facilities are inherently unequal.
D) Established judicial restraint as the primary philosophy of the Court.

Answer: C) Declared that “separate but equal” educational facilities are inherently unequal.

Explanation:
The Supreme Court’s decision in Brown v. Board of Education used judicial review to overturn state laws enforcing racial segregation in public schools, ruling that “separate but equal” educational facilities were inherently unequal. This decision marked a critical application of judicial review to ensure compliance with the Equal Protection Clause of the Fourteenth Amendment, making it a key moment in civil rights history. Option A is incorrect because it misstates the outcome of the case, while Option B does not reflect the subject matter of the decision. Option D is unrelated to the Brown decision, which was an example of judicial activism, not judicial restraint.