What is a Judicial Review? - Procedure & Definition

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  • 0:00 Definition
  • 0:30 Historical Background
  • 2:40 Procedure
  • 4:10 Historical Examples
  • 5:30 Lesson Summary
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Lesson Transcript
Instructor: Ronald Kotlik

Ron has taught history and educational technologies at the high school and college level and has a doctorate in American History.

In this lesson, we will define judicial review, learn about its historical background, examine the procedure involved in using judicial review and look at examples of how the Supreme Court has used judicial review.

Definition

A Judicial review is the power of the Supreme Court of the United States to review actions taken by the legislative branch (Congress) and the executive branch (president) and decide whether or not those actions are legal under the Constitution. The court can nullify or invalidate an action if it is deemed unconstitutional. Judicial review is an essential part of checks and balances within the federal government giving the Supreme Court (judicial branch) equal power with the other two branches of government.

Historical Background

The Supreme Court did not have the power of judicial review under the initial provisions of the Constitution as drafted in 1787. This important power was acquired through the landmark case, Marbury v. Madison in 1803. The case was rooted in the divisions between the Federalist and Republican parties following the election of 1800. During this election, Thomas Jefferson (Republican) defeated President John Adams (Federalist), who was seeking a second term.

While Adams lost the election in November of 1800, his term of office did not expire until the following March. Adams used this period to appoint several federal judges to the bench. Some of these appointments were made during the final hours of his presidency, earning the dubious title, 'the Midnight Judges.'

A judge could not assume a position until a commission was officially delivered by the Secretary of State. Since many of Adams' appointments were made in the final days of his presidency, many of the commissions were not delivered when he left office. The new president, Thomas Jefferson, ordered his new Secretary of State, James Madison, not to deliver the commissions.

Portrait of James Madison
James Madison

William Marbury, who expected his commission, requested that the Supreme Court issue a writ of mandamus (an official order to a government official) to Madison forcing him to deliver the commission. Marbury argued that the Supreme Court had the power to issue the writ under the provisions of the Judiciary Act passed by Congress in 1789.

Portrait of William Marbury
William Marbury

In 1803, the Supreme Court ruled that Madison should not have withheld Marbury's commission. Chief Justice John Marshall argued for the court that since the commission was signed and sealed it was rightfully owed to Marbury. However, Marshall also ruled that the Supreme Court did not have jurisdiction in this matter and could not force Madison to deliver the commission.

Marshall went on to note that the provisions of the Judiciary Act of 1789 that gave the court the power to issue such writs and orders was unconstitutional.

In this significant case, the court established the important precedent of judicial review by declaring the Judiciary Act of 1789 illegal. Marshall affirmed this with, 'The particular phraseology of the Constitution of the United States confirms and strengthens this principle...that a law repugnant to the Constitution is void' ('Marbury v. Madison () 100 U.S.,').

Portrait of John Marshall
John Marshall

Procedure

The Constitution is especially vague in detailing the powers of the Supreme Court. Article III, Section I of the Constitution stipulates that the court has original jurisdiction only when there is a dispute between the states or among high ranking officials. This means that the court is the first and last to hear and decide on the case. However, these circumstances are rare and in most cases, especially those involving judicial review, the court decides on cases based upon its appellate jurisdiction.

In these situations, the court has the power to review and decide upon cases that are appealed (seeking additional review) from the lower courts. When the court hears cases involving constitutional issues (judicial review), decisions in these matters are final. These decisions can only be overturned by having an amendment added to the Constitution or through another Supreme Court decision.

Supreme Court
Supreme Court

When exercising the power of judicial review the court is expected to act with judicial restraint. This means that they can only decide on the constitutionality of an issue. In most cases, the court respects the precedent, or past decisions, of lower courts. Justices on the court cannot use a case to inject their own political feelings on a particular issue. This form of judicial activism is usually discouraged. Judicial review gives them the power to only decide if a particular law or action by a government official was legal based upon the Constitution.

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