Judicial review is the power of a court to decide whether a statute or executive act conforms to the Constitution, and to refuse to apply it if it does not. The Constitution does not say so in as many words. The power was established by the Supreme Court itself, on the reasoning that saying what the law is belongs to the judicial department, and that the Constitution is law which the courts must apply over conflicting statutes.
Rule
- The source. Article III's grant of judicial power, read together with the supremacy of the Constitution over ordinary law.
- Reach. It extends to acts of Congress, executive action, and the judgments of state courts on federal questions.
- Standing. A plaintiff needs an injury in fact that is concrete and particularised, fairly traceable to the challenged conduct, and redressable by a favorable decision.
- Ripeness and mootness. A case must be ready for decision and must remain live, subject to exceptions such as harms capable of repetition yet evading review.
- Political questions. Some issues are committed to the political branches or lack judicially manageable standards, and courts decline to reach them.
- Adequate and independent state grounds. The Supreme Court will not review a state judgment that rests on state law sufficient to support it.
Leading cases
- Marbury v. Madison: the Court held that it is emphatically the province of the judiciary to say what the law is, and struck down a statutory provision that conflicted with Article III.
- Martin v. Hunter's Lessee: the Supreme Court has appellate authority over state court judgments that turn on federal law, which is what keeps federal law uniform.
- Cooper v. Aaron: state officials are bound by the Court's constitutional interpretations, which the Justices described as the supreme law of the land.
Where students go wrong
The first mistake is treating judicial review as unlimited. Standing, ripeness, mootness and the political question doctrine decide a great many constitutional cases before any merits question is reached.
The second is skipping the jurisdictional posture. Whether the case arrives on original or appellate jurisdiction shaped the reasoning in the founding case and still matters.
The third is assuming a court will always reach the constitutional issue. Courts avoid constitutional questions where a statutory ground disposes of the case.
FAQ
Is judicial review in the text of the Constitution?
Not expressly. It is inferred from the judicial power in Article III and from the Supremacy Clause, and it was established in practice by the Supreme Court.
What is standing?
The requirement that the plaintiff has suffered a concrete and particularised injury that the defendant caused and that the court can redress. A general grievance shared by everyone is not enough.
What is a political question?
An issue the Constitution commits to another branch, or one with no judicially manageable standards. Courts dismiss such claims rather than deciding the merits.
Related terms
Working through this in your own casebook takes longer than reading it here. Syllume starts from your syllabus and turns each assigned case into a brief you can study from.