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.

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

This statement lives within the section of code dealing with the U.S. judiciary’s federal courts.  The “district courts” in the statement refer to the first of three levels of federal courts. 

Not much of the legislative context for this survives today so it’s difficult to know the extent to which its creators intended its use but one historical incident that appears to have given rise to the legislation was the a French diplomat Francis Barbe Marbois was attacked in America and had little legal recourse.

Seminal Cases:

In 1980 the U.S. Second Circuit Court of Appeals heard the case of Filartiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980).  The case was brought by the father and sister of a young man allegedly tortured to death by a Paraguyan official.  Initially the case was dismissed for “want of federal jurisdiction” but the 2nd Circuit reversed the lower court’s decision, remanding the case.

This statute allows foreign nationals to sue other foreign nationals in federal court based on non-U.S. laws.

By way of contrast,  statutory law creates law with the successful statutes of a legislative body and regulatory law utilizes requirements and obligations handed down by members of the executive branch to form law.  Consitutional law predicates its laws upon the articles of the Constitution.

A governing principle of common law is stare decisis which in short means that if the components of a case are materially the same as a previously decided case then a similar result must be reached.

In the U.S. the Supreme Court, the only court expressly created by the Constitution, is a common law court by implication of Article 3 of the Constitution.  The Supreme Court uses common law to adjudicate the legal implications of statutory and regulatory law and the application of and implications of Constitutional law.

The term comes from English laws that were considered common among different districts over which itinerent judges presided.  These laws were not statutory in nature but the citizens of the several districts held them to be universally understood.   These common laws are referred to as having authority to review royal power in the Magna Carta by the term “. . . except by the lawful judgement of his peers or by the law of the land.” (emphasis mine)

The term literally means “standing by decisions” or “standing by things decided” in Latin.  It provides stability and consistency to common law rulings.