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.

Judge Hand lived during a period often cited as judicially progressive (the late Nineteenth and early Twentieth Century saw the Supreme Court active in reviewing large volumes of state legislation based on an application of “due process” to economic and social issues).  Judge Hand advocated for judicial restraint and leaving law-making to the legislature; professionally, he did not believe in overturning or striking down legislation even if his personal opinion a particular law was negative.  Learned Hand even felt that the Bill of Rights was not to be used by courts to overrule statutory law; thus his arguments that the “due process” clauses of the Fifth and Fourteenth Amendments should not be used by judges to meddle in legislation.

Judge Hand was a strong advocate of the principle of free speech.  His free speech test, most famously found in Masses Publishing Co. v. Patten (1917), was that anything short of directly inciting illegal action should be protected speech.  This view was overturned on appeal and Supreme Court Justice Oliver Wendell Holmes, Jr.’s “clear and present danger” test became the standard for free speech in the June 1919 Schenck v. United States decision.  Perhaps it isn’t suprising to find that Hand is credited as one of three or four judicial theorists who’s arguments seemed to sway Justice Holmes so that when he wrote his famous and ubiquitous “shout[ing] fire in a crowded theater” statement in the November 1919 decision of Abrams v. United States, his dissent modified free speech tests for the last century.

Judge Hand may have been a somewhat forgettable lawyer and a standout as a federal judge but his greatest contribution was to the body of judicial theory; most especially in regards to libertarian interpretation moderated by judicial restraint.