In the United States, judicial review is the legal power of a court to determine if a statute, treaty, or administrative regulation contradicts or violates the provisions of existing law, a state constitution, or ultimately the United States Constitution. While the U.S. Constitution does not explicitly define the power of judicial review, the authority for judicial review in the United States has been inferred from the structure, provisions, and history of the Constitution."The Establishment of Judicial Review". Findlaw.
Two landmark decisions by the U.S. Supreme Court served to confirm the inferred constitutional authority for judicial review in the United States. In 1796, Hylton v. United States was the first case decided by the Supreme Court involving a direct challenge to the constitutionality of an act of Congress, the Carriage Act of 1794 which imposed a "carriage tax". The Court performed judicial review of the plaintiff's claim that the carriage tax was unconstitutional. After review, the Supreme Court decided the Carriage Act was constitutional. In 1803, Marbury v. MadisonMarbury v. Madison, 5 US (1 Cranch) 137 (1803). was the first Supreme Court case where the Court asserted its authority to strike down a law as unconstitutional. At the end of his opinion in this decision, Chief Justice John Marshall maintained that the Supreme Court's responsibility to overturn unconstitutional legislation was a necessary consequence of their sworn oath of office to uphold the Constitution as instructed in Article Six of the Constitution.
, the United States Supreme Court has held 176 Acts of the U.S. Congress unconstitutional.See Congressional Research Services' The Constitution of the United States, Analysis And Interpretation, 2013 Supplement, pp. 49–50. In the period 1960–2019, the Supreme Court has held 483 laws unconstitutional in whole or in part.
Description
Provisions of the Constitution The text of the Constitution does not contain a specific reference to the power of judicial review. Rather, the power to declare laws unconstitutional has been deemed an implied power, derived from Article III and Article VI.While the Constitution does not explicitly authorize judicial review, it also does not explicitly prohibit it, as did the Virginia Constitution of 1776. That Virginia Constitution said: "All power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised." Virginia Constitution of 1776 via Avalon Project at Yale Law School.
The provisions relating to the federal judicial power in Article III state:
The Supremacy Clause of Article VI states:
The power of judicial review has been implied from these provisions based on the following reasoning. It is the inherent duty of the courts to determine the applicable law in any given case. The Supremacy Clause says "[t]his Constitution" is the "supreme law of the land." The Constitution therefore is the fundamental law of the United States. Federal statutes are the law of the land only when they are "made in pursuance" of the Constitution. State constitutions and statutes are valid only if they are consistent with the Constitution. Any law contrary to the Constitution is void. The federal judicial power extends to all cases "arising under this Constitution." As part of their inherent duty to determine the law, the federal courts have the duty to interpret and apply the Constitution and to decide whether a federal or state statute conflicts with the Constitution. All judges are bound to follow the Constitution. If there is a conflict, the federal courts have a duty to follow the Constitution and to treat the conflicting statute as unenforceable. The Supreme Court has final appellate jurisdiction in all cases arising under the Constitution, so the Supreme Court has the ultimate authority to decide whether statutes are consistent with the Constitution.See Marbury v. Madison, 5 U.S. at 175–78.
Standard of review
In the United States, unconstitutionality is the only ground for a federal court to strike down a federal statute. Justice Washington, speaking for the Marshall Court, put it this way in an 1829 case:
If a state statute conflicts with a valid federal statute, then courts may strike down the state statute as an unstatutable violation of the Supremacy Clause. But a federal court may not strike down a statute absent a violation of federal law or of the federal Constitution.
Moreover, a suspicion or possibility of unconstitutionality is not enough for American courts to strike down a statute. Alexander Hamilton explained in Federalist 78 that the standard of review should be "irreconcilable variance" with the Constitution. Anti-federalists agreed that courts would be unable to strike down federal statutes absent a conflict with the Constitution. For example, Robert Yates, writing under the pseudonym "Brutus", asserted that "the courts of the general government [will] be under obligation to observe the laws made by the general legislature not repugnant to the constitution."
These principles—that federal statutes can only be struck down for unconstitutionality and that the unconstitutionality must be clear—were very common views at the time of the framing of the Constitution. For example, George Mason explained during the constitutional convention that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course."
For a number of years, the courts were relatively deferential to Congress. Justice Washington put it this way, in an 1827 case: "It is but a decent respect to the wisdom, integrity, and patriotism of the legislative body, by which any law is passed, to presume in favor of its validity, until its violation of the Constitution is proved beyond a reasonable doubt."Ogden v. Saunders, 25 U.S. 213 (1827).
Although judges usually adhered to this principle that a statute could only be deemed unconstitutional in case of a clear contradiction until the twentieth century, this presumption of constitutionality weakened somewhat during the twentieth century, as exemplified by the Supreme Court's famous footnote four in United States v. Carolene Products Co., 304 U.S. 144 (1938), which suggested that statutes may be subjected to closer scrutiny in certain types of cases. Nevertheless, the federal courts have not departed from the principle that courts may only strike down statutes for unconstitutionality.
Of course, the practical implication of this principle is that a court cannot strike down a statute, even if it recognizes that the statute is obviously poorly drafted, irrational, or arises from legislators' corrupt motives, unless the flaw in the statute rises to the level of a clear constitutional violation. In 2008, Justice John Paul Stevens reaffirmed this point in a concurring opinion: "[A]s I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: 'The Constitution does not prohibit legislatures from enacting stupid laws.'"New York State Bd. of Elections v. Lopez Torres, 552 U.S. ___, ___ (2008) (Stevens, J., concurring).
In the federal system, courts may only decide actual cases or controversies; it is not possible to request the federal courts to review a law without at least one party having legal standing to engage in a lawsuit. This principle means that courts sometimes do not exercise their power of review, even when a law is seemingly unconstitutional, for want of jurisdiction. In some state courts, such as the Massachusetts Supreme Judicial Court, legislation may be referred in certain circumstances by the legislature or by the executive for an advisory ruling on its constitutionality prior to its enactment (or enforcement).
The U.S. Supreme Court seeks to avoid reviewing the Constitutionality of an act where the case before it could be decided on other grounds, an attitude and practice exemplifying judicial restraint. Justice Brandeis framed it thus (citations omitted):Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346–9 (1936) (Brandeis, concurring) (citing cases)
Laws limiting judicial review Although the Supreme Court continues to review the constitutionality of statutes, Congress and the states retain some power to influence what cases come before the Court. For example, the Constitution at Article III, Section 2, gives Congress power to make exceptions to the Supreme Court's appellate jurisdiction. The Supreme Court has historically acknowledged that its appellate jurisdiction is defined by Congress, and thus Congress may have power to make some legislative or executive actions unreviewable. This is known as jurisdiction stripping.
Another way for Congress to limit judicial review was tried in January 1868, when a bill was proposed requiring a two-thirds majority of the Court in order to deem any Act of Congress unconstitutional.Schwartz, Bernard. A History of the Supreme Court, page 141 (Oxford University Press US 1995). The bill was approved by the House, 116 to 39.McPherson, Edward. A political manual for 1868, pages 350–351 (Philp & Solomons 1868). That measure died in the Senate, partly because the bill was unclear about how the bill's own constitutionality would be decided.Goldstone, Lawrence. Inherently Unequal: The Betrayal of Equal Rights by the Supreme Court, 1865–1903, pages 55–56 (Bloomsbury Publishing USA 2011).
Many other bills have been proposed in Congress that would require a supermajority in order for the justices to exercise judicial review.Caminker, Evan. "Thayerian Deference to Congress and Supreme Court Supermajority Rule: Lessons From the Past ", 78 Indiana Law Journal 73 (2003). During the early years of the United States, a two-thirds majority was necessary for the Supreme Court to exercise judicial review; because the Court then consisted of six members, a simple majority and a two-thirds majority both required four votes.Nackenoff, Carol. "Constitutional Reforms to Enhance Democratic Participation and Deliberation: Not All Clearly Trigger the Article V Amendment Process ", 67 Maryland Law Review 62, 65 (2007). Currently, the constitutions of two states require a supermajority of supreme court justices in order to exercise judicial review: Nebraska (five out of seven justices) and North Dakota (four out of five justices).
Administrative review The procedure for judicial review of federal administrative regulation in the United States is set forth by the Administrative Procedure Act, although the courts have ruled such as in Bivens v. Six Unknown Named Agents403 U.S. 388 (1971). that a person may bring a case on the grounds of an implied cause of action when no statutory procedure exists. In general when federal courts are reviewing administrative action they are looking to see if the said agency has acted within its scope of stautory authority. Federal agencies frequently exercise their powers which have been delegated by Congress. Historically courts would apply doctrines of deference in order to review agency interpretations of statutes. In Chevron USA Inc. v. Natural Resources Defense Council judges were instructed to defer to reasonable agency interpretations whenever laws proved to be ambiguous. This deference was limited in a recent decision Loper Bright Enterprises v. Raimondo 2024 reaffirming that courts exercise independent judgement when determining whether or not an agency has acted within its statutory authority.
History
Before and during adoption of the Constitution
Early State Supreme Court cases