Definition
Judicial review is the power of courts to evaluate the constitutionality of legislative acts, executive actions, and lower-court rulings — and to declare them void if they conflict with the Constitution. In the United States the power applies at all levels of the judiciary (state and federal), with the US Supreme Court as the final word on federal constitutional questions.
Chief Justice John Marshall, Marbury v. Madison (1803): It is emphatically the province and duty of the judicial department to say what the law is.
The four moves of Marbury v. Madison
Key takeaways
Judicial review is not in the text — it is in the logic
Marshall's argument in Marbury was logical, not textual. If the Constitution is a higher law, and courts must decide cases according to law, then when statutes conflict with the Constitution, courts must apply the Constitution and disregard the statute. The textual hook is thin (the Supremacy Clause, the Article III "judicial Power"), but the logical chain is hard to refute once you accept its premises. Most countries with constitutional courts now follow a version of the same logic.
How a constitutional case reaches the Supreme Court
Standing — the threshold question
A federal court will not decide a case unless the plaintiff has standing. Three elements:
| Element | Requirement | |---|---| | Injury in fact | Concrete and particularized, actual or imminent — not hypothetical | | Causation | Fairly traceable to the defendant's conduct | | Redressability | A favorable ruling will likely redress the injury |
If any element fails, the court has no jurisdiction to decide. Standing doctrine is therefore the most powerful gate on judicial review — the Court controls which constitutional questions get answered through who can bring them.
Stare decisis and overruling
Example: Why Marbury worked politically
Marshall's genius was claiming a major power while denying himself a politically explosive remedy. If he had ordered Madison to deliver the commission, Jefferson's administration would likely have refused — and the Court would have been exposed as powerless. By ruling that the Judiciary Act provision was unconstitutional, Marshall:
- Established judicial review as a doctrine.
- Denied the writ Marbury wanted (so there was nothing for Jefferson to defy).
- Restricted his own Court's jurisdiction (a costless gesture in this case).
- Forced the political branches to accept the principle without giving them anything immediate to oppose.
Two centuries of judicial review rests on this one move.