Judicial Review. I am confused on what it is.

I tried reading the wiki page on Judicial Review, but reading legal stuff has never clicked with me for some reason.

Can someone explain it to me like I’m a 4th grader?

What, exactly, is it? Does it mean courts can judge the law? If so, I guess I’ve naively thought courts always had the power to judge the law. Or does it mean something else? What are the pros and cons to Judicial Review?

Legislatures can pass any laws they want. But sometimes, they pass laws that go against the Constitution. Judges can rule that the laws violate the Constitution and invalidate them. It’s not written in the Constitution that they can do this, but it was established by Marbury vs Madison, a Supreme Court case in 1803. Before that, this process was not in place, it arose as a result of this case, and is now established as a check on Congress by the Judiciary.

Judicial Review is the process by which a Court decides whether an action by a body is in excess or outside of its powers under law or barred. This can be a Court deciding that zoning regulation go beyond what was permitted in the enabling statute all the way up to Courts deciding that even Constitutional amendments are unconstitutional, (as in India).

The nature and scope of Judicial review is varied by jurisdiction and by subject matter within the jurisdiction. For instance, ijn the United States, Judicial review of Acts of Congress are limited to being outside of Congressional powers or barred by specific provisions of the same, while State laws (by Federal Courts) can be challenged on broader grounds (Constitution, violation of Federal Law or ratified treaty). In India and Germany, even Constitutional Amendments can be reviewed as being against the Basic law of the Country. In England, Acts of Parliaments cannot be challenged (except in limited circumstances).


Inaccurate. The first case the SCOTUS considered the constitutionality of an Act of Congress was in Hylton v The United States 3 US 171 (1786), where the US Supreme Court considered whether a particular ax was within the Congresses power’s, they concluded it was.

Even before that, the concept had existed since Lord Justice Coke’s judgment in Dr Bonhom’s Case 8 Co. Rep. 107, in England so by 1803, the concept was nearly two centuries old.

You should fix the citation: the date of the case was 1796. In 1786, the Supreme Court didn’t exist. :wink:

As for “judicial review” being involved in Hylton, as I recall, the issue of whether the Court could review the act was not brought up, and was not relevant because the Court upheld the constitutionality of the tax. The reason that Marbury v. Madison is always cited for the concept of judicial review by the Supreme Court of the United States is that the Court first directly addressed the applicability in that case.

I didn’t mean to imply that Judicial Review as a concept was created by Marbury v Madison, only that it was first established in the US by that case.

In case anyone was as confused by this as I was, “ax” here is a typo for “tax”. I couldn’t figure out what kind of powers Congress would have over a particular ax.

Careful, Eugene.

The Supreme Court of the United States at any rate.:wink:

Well the claim made by the Appellant in the Court was per Paterson J at pg 176;

It’s hard to read it as anything else then examining whether the action of a body (i.e Act of Congress) was within the powers of the enabling law (i.e the US Constitution). In other words, Judicial Review.

Unless you are arguing that the holding wasobiter?

No, what I’m pointing out is that the question of whether the Supreme Court of the United States has the right to judicially review the constitutionality of a law is only presented properly the first time that it attempts to hold such a law unconstitutional. In Hylton, since the Court found that the law WAS constitutional, the issue of whether they had the POWER to do so is really a moot issue. Further, the issue that they did not have the power to do so was never raised, so unless the Court (or one of the justices) raised the issue sua sponte, it wasn’t going to be addressed.

So while Hylton was a case which involved judicial review, it was not a case where judicial review was at issue.

Personal addition to the OP’s question, but different cases seem to be judged on different criteria, rational basis review, intermediate scrutiny, and strict scrutiny. A few reads of the Wikipedia never really clarified for me what makes a judge decide that one form of scrutiny is merited for a particular judgement while another is not, or if all three are applied to everything?

The constitution has a clause that says something like: …this constitution and laws and treaties passed pursuant thereto are the supreme law of the land… Now what about laws not “pursuant thereto”. In other words, if congress passes a law not authorized by something in the constitution, what then? I suppose different answers are possible, including that such laws are valid but could be overridden by a state (since they are not supreme), but it is certainly plausible that such laws are without effect. At any rate, that clause is certainly the origin of judicial review.

Incidentally, the main function of that clause was doubtless to put an end to any notion of state nullification. I assume there was some discussion of this in the constitutional convention, and perhaps someone more knowledgeable than me could enlighten us.

I believe this related to a case executive privilege. they ruled that George Washington could chop down the cherry tree, provided he didn’t lie about it.

The George Washington Principle - “It’s easy to tell the truth when you’re the one holding the axe.”

William Treanor’s article on judicial review pre-Marbury argues that judicial review was well-established in the decisions of the lower federal and state courts. He cites 31 cases prior to Marbury where a court held a statute was unconstitutional, and 7 more cases where at least one judge on a panel argued that a statute was unconstitutional: Treanor, “Judicial Review Before Marbury” (2005), 58 Stanford L.Rev. 455.

Towards the end of his article, Treanor states:

If his thesis is accepted, Treanor has demonstrated that Marshall did not invent judicial review in Marbury. Rather, his decision was part of a well-established legal doctrine that had been applied in the courts prior to Marbury. By this view, the significance of Marbury was that it firmly established judicial review under the federal Constitution, but Marshall did not make up the doctrine out of whole cloth, as it is sometimes presented. His decision was well within the scope of contemporary constitutional doctrine.

If you want to read about the Case of Prisoners (by the same author) then see Case of the Prisoners and the Origins of Judicial Review (1994) 143 U. Pa. L. Rev. 491 (available happily online in PDF format)

Thanks, AK84! I hadn’t heard of the Case of the Prisoners and was about to start googling it.

One thing that might be worth pointing out is that the court doesn’t just decide by itself to conduct a judicial review. Some party other than the court has to challenge the law or rule (by filing a suit), and usually that person must have standing, i.e., be effected by the law or rule in question.

This is actually a fun area of Constitutional Law to learn about. :cool:

We start with the simple question: how much deference should the courts give to the legislature in its efforts to address the issues of the day? It’s easiest to see this tension with equal protection. After all, every law discriminates against some group of persons. A law which punishes murderers with life imprisonment discriminates against those who commit murder. When, therefore, will we allow government to discriminate?

As a general rule, courts will defer to the legislature when it comes to most such discrimination. As long as the legislature can articulate some legitimate governmental concern being addressed, and can articulate some rational relationship between the legislation passed and the concern being addressed, the courts will allow that legislation to stand. Rarely are laws found to be unconstitutional under the rational relationship test.

But suppose that the discrimination in question is something that the equal protection clause was enacted to prevent? Suppose that the legislature passes a law which discriminates against those who are considered “black”. For example, by requiring that those who are “black” pay a added $25 fee to be licensed to ride a bicycle. The legislature might come up with some legitimate concern being addressed, and might manage to put forth some rational relationship between the fee and the concern. But the courts won’t end the scrutiny of the law there, because “blacks” as a group are a class of people specifically designed to be protected by the equal protection clause. So the courts instead scrutinize this strictly. The concern the legislature is addressing must be a “compelling” interest. Further, in addressing this compelling interest, the legislature’s solution must be narrowly tailored to solve the concern, and it must be the least restrictive means of doing so. It is rare that a law will survive this level of scrutiny.

This level of scrutiny, by the way, was first postulated in 1938 in a famous footnote found in an opinion of Justice Stone in United States v. Carolene Products Co., a case in which the rational relationship test was used. Justice Stone postulated using a strict level of scrutiny in certain cases: those which on their face appear to violate provisions of the Constitution, those which attempt to subvert the political process, and those which are directed at particular national, religious or racial minorities. The Court first applied such a scrutiny in the infamous Korematsu v. United States, where the Court upheld President Roosevelt’s orders interning Japanese-Americans during WWII after applying the strict scrutiny test.

As for the intermediate level of scrutiny, let’s just say that sometimes the Court has wanted to give groups of people protection beyond the level of “rational relationship”, but cannot justify “strict scrutiny” because the group doesn’t really meet the boundaries of that concept. So the Court then ends up trying to split the baby, and the result is rarely pretty. The test is usually articulated as requiring an “important” governmental interest, and the legislation must be “substantially related” to that interest. All sorts of groupings have gotten this treatment, most notably gender-based classifications.

I actually own that axe. The handle’s been replaced three times and the head twice, but it’s the same one.

Here, one of the tests that can justify judicial review is Wednesbury reasonableness.

What a coincidence! I own the three old handles and two old heads from that axe! I made two new axes from them, although they’re actually both the same axe.