What Is . . . Judicial Review?
Judicial review is a fundamental principle in U.S. common law courts. It is this principle that establishes the judiciary’s equality with (some might argue primacy over) the executive and the legislative branches of government.
Judicial review is the principle where the U.S. Supreme Court has the authority to review all law. Based on judicial review the U.S. Supreme Court can review states’ laws, federal legislation, executive regulations and, depending on your view, Constitutional law.
Because of precedence in common law, the ruling of Marbury v. Madison (5 U.S. 137, 1803 – syllabus) establishes that the U.S. Supreme Court stands in the role of adjudicator of all other law. In the court’s opinion, Mr Chief Justice Marshall wrote:
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.
I’m satisfied that these two sentences are the Marshall court’s foundation for judicial authority and that the next statement is meant to demonstrate a situation in which they expected the court’s authority to be called upon from that time forward when he wrote:
If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
The authority and extent of judicial review has been challenged, especially in the Twentieth Century, but that may better be handled in reviews of due process and judicial restraint.
