8.3 Judicial review

Judicial review is a cornerstone of the American legal system, allowing courts to check the power of other branches. It ensures laws and actions align with the Constitution, protecting individual rights and maintaining the balance of power.

The concept was established in Marbury v. Madison, giving courts the authority to invalidate unconstitutional laws. This power has shaped American law and politics, influencing everything from civil rights to economic regulations and executive actions.

Constitutional basis for judicial review

• Judicial review is the power of courts to review and invalidate laws and executive actions that violate the Constitution
• This power is not explicitly mentioned in the Constitution but has been inferred from the Supremacy Clause (Article VI, Clause 2) and the judiciary's role in interpreting the law
• Judicial review serves as a check on the legislative and executive branches, ensuring that they act within the bounds of the Constitution

Marbury v. Madison

Establishing judicial review

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• In the landmark case of Marbury v. Madison (1803), the Supreme Court, led by Chief Justice John Marshall, established the principle of judicial review
• The case arose from a dispute over President John Adams' appointment of William Marbury as a justice of the peace in the final days of his administration
• The Court held that the Judiciary Act of 1789, which granted the Supreme Court original jurisdiction to issue writs of mandamus, was unconstitutional because it expanded the Court's jurisdiction beyond what was permitted by Article III of the Constitution

Judicial review vs. judicial supremacy

• Judicial review is the power of courts to review and invalidate unconstitutional laws and actions, while judicial supremacy is the idea that the Supreme Court's interpretation of the Constitution is the supreme law of the land
• Some argue that judicial supremacy gives the Court too much power and undermines the separation of powers, while others believe it is necessary to ensure the Constitution's supremacy
• The concept of judicial supremacy has been challenged by other branches of government, such as President Andrew Jackson's refusal to enforce the Court's decision in Worcester v. Georgia (1832)

Limits of judicial review

Political question doctrine

• The political question doctrine holds that certain issues are not suitable for judicial review because they are better left to the political branches (legislative and executive) to resolve
• Examples of political questions include disputes between branches of government, foreign policy decisions, and the impeachment process
• In Baker v. Carr (1962), the Supreme Court outlined six factors to determine whether a case presents a political question, such as a lack of judicially discoverable and manageable standards or the impossibility of deciding the issue without expressing a lack of respect for a coordinate branch of government

Standing requirements

• To bring a case in federal court, a plaintiff must have standing, which requires a concrete and particularized injury, a causal connection between the injury and the challenged conduct, and the likelihood that a favorable decision will redress the injury
• Organizations can have standing if they can show that their members would have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members
• Taxpayers generally do not have standing to challenge government spending, but there is an exception for Establishment Clause challenges (Flast v. Cohen, 1968)

Ripeness and mootness

• Ripeness is the requirement that a case must be sufficiently developed and not based on speculative future events for a court to hear it
• Mootness occurs when a case no longer presents a live controversy, such as when the challenged law has been repealed or the plaintiff's injury has been resolved
• Exceptions to mootness include cases capable of repetition yet evading review (Roe v. Wade, 1973) and voluntary cessation of the challenged conduct by the defendant

Scope of judicial review

Rational basis review

• Rational basis review is the lowest level of scrutiny applied by courts when reviewing the constitutionality of laws
• Under this standard, a law will be upheld if it is rationally related to a legitimate government interest
• Most economic and social legislation is subject to rational basis review, and courts generally defer to the judgment of the legislature

Intermediate scrutiny

• Intermediate scrutiny is a higher level of review than rational basis but lower than strict scrutiny
• Under this standard, a law must be substantially related to an important government interest
• Intermediate scrutiny is applied to laws that discriminate based on gender (Craig v. Boren, 1976) and content-neutral restrictions on speech (United States v. O'Brien, 1968)

Strict scrutiny

• Strict scrutiny is the highest level of review applied by courts and is used when a law infringes upon a fundamental right or discriminates based on a suspect classification (race, national origin, or religion)
• To survive strict scrutiny, a law must be narrowly tailored to achieve a compelling government interest
• Examples of laws subject to strict scrutiny include racial classifications in education (Brown v. Board of Education, 1954) and restrictions on the right to marry (Loving v. Virginia, 1967)

Judicial review of executive actions

Executive orders and proclamations

• Executive orders and proclamations are directives issued by the President to federal agencies and officials
• Courts can review these actions to ensure they are within the scope of the President's constitutional and statutory authority
• In Youngstown Sheet & Tube Co. v. Sawyer (1952), the Supreme Court struck down President Truman's executive order seizing steel mills during the Korean War, finding that he had exceeded his authority

Administrative agency decisions

• Federal administrative agencies, such as the Environmental Protection Agency (EPA) and the Federal Communications Commission (FCC), issue regulations and adjudicate disputes within their areas of expertise
• Courts can review agency actions to ensure they are not arbitrary, capricious, or contrary to law (Administrative Procedure Act, 5 U.S.C. § 706)
• In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), the Supreme Court established a two-step framework for reviewing agency interpretations of statutes: (1) if the statute is clear, the agency must follow it; (2) if the statute is ambiguous, the court must defer to the agency's reasonable interpretation

Judicial review of state laws

Preemption by federal law

• Under the Supremacy Clause, federal law preempts conflicting state laws
• Courts can strike down state laws that are expressly preempted by federal law, conflict with federal law, or frustrate the purposes of federal law
• In Arizona v. United States (2012), the Supreme Court struck down several provisions of an Arizona immigration law, finding that they were preempted by federal immigration law

Dormant Commerce Clause

• The Dormant Commerce Clause is an implied restriction on state power that prohibits states from discriminating against or unduly burdening interstate commerce
• Courts can invalidate state laws that discriminate against out-of-state businesses or products (City of Philadelphia v. New Jersey, 1978) or impose excessive burdens on interstate commerce (Kassel v. Consolidated Freightways Corp., 1981)
• States can justify discriminatory laws if they serve a legitimate local purpose that cannot be adequately served by non-discriminatory means (Maine v. Taylor, 1986)

Incorporation of Bill of Rights

• The Bill of Rights originally applied only to the federal government, but the Supreme Court has gradually incorporated most of its provisions against the states through the Due Process Clause of the Fourteenth Amendment
• Incorporation began with the First Amendment's protection of free speech (Gitlow v. New York, 1925) and has expanded to include most other rights, such as the right to bear arms (McDonald v. City of Chicago, 2010)
• Some provisions, such as the Third Amendment's protection against quartering soldiers and the Seventh Amendment's right to a jury trial in civil cases, have not been incorporated

Judicial review of federal laws

Presumption of constitutionality

• Federal laws enacted by Congress are presumed to be constitutional, and courts will generally defer to the judgment of the legislative branch
• To overcome this presumption, a challenger must demonstrate that the law violates a specific constitutional provision or principle
• In United States v. Morrison (2000), the Supreme Court struck down a provision of the Violence Against Women Act, finding that it exceeded Congress's power under the Commerce Clause and the Fourteenth Amendment

Facial vs. as-applied challenges

• A facial challenge to a law argues that it is unconstitutional in all possible applications, while an as-applied challenge argues that it is unconstitutional as applied to a particular person or situation
• Facial challenges are more difficult to win because the challenger must show that there are no set of circumstances under which the law would be valid
• In United States v. Salerno (1987), the Supreme Court held that a facial challenge to a law requires showing that "no set of circumstances exists under which the Act would be valid"

Severability of unconstitutional provisions

• When a court finds a provision of a law unconstitutional, it must determine whether that provision is severable from the rest of the law or whether the entire law must be struck down
• The severability of a provision depends on whether it is an essential part of the legislative bargain and whether Congress would have enacted the law without it
• In National Federation of Independent Business v. Sebelius (2012), the Supreme Court found the Affordable Care Act's Medicaid expansion unconstitutionally coercive but severed it from the rest of the law

Judicial restraint vs. judicial activism

Theories of constitutional interpretation

• Judicial restraint is the view that courts should defer to the political branches and invalidate laws only when they clearly violate the Constitution
• Judicial activism is the view that courts should actively interpret the Constitution to protect individual rights and promote social progress
• Other theories of interpretation include textualism (focusing on the plain meaning of the text), originalism (interpreting the Constitution based on its original understanding), and pragmatism (considering the practical consequences of decisions)

Originalism vs. living constitutionalism

• Originalism is the view that the Constitution should be interpreted according to its original meaning at the time it was adopted
• Living constitutionalism is the view that the Constitution should be interpreted in light of evolving social norms and values
• In District of Columbia v. Heller (2008), the Supreme Court adopted an originalist approach to interpret the Second Amendment's right to bear arms, while in Obergefell v. Hodges (2015), the Court relied on a living constitutionalist approach to recognize a constitutional right to same-sex marriage

Judicial deference to political branches

• The principle of judicial deference holds that courts should respect the judgments of the legislative and executive branches on matters of policy and avoid substituting their own views
• Deference is based on the idea that the political branches are more democratically accountable and have greater expertise in certain areas
• In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), the Supreme Court established a deferential framework for reviewing agency interpretations of ambiguous statutes

Landmark judicial review cases

Lochner era and substantive due process

• During the Lochner era (1897-1937), the Supreme Court struck down many economic regulations as violations of substantive due process, which is the idea that the Due Process Clause protects certain fundamental rights from government interference
• In Lochner v. New York (1905), the Court invalidated a state law limiting the hours of bakery workers, finding that it violated the freedom of contract
• The Lochner era ended with West Coast Hotel Co. v. Parrish (1937), in which the Court upheld a minimum wage law and rejected the freedom of contract as a basis for invalidating economic regulations

New Deal era and Commerce Clause

• During the New Deal era (1933-1936), the Supreme Court initially struck down many of President Franklin D. Roosevelt's economic recovery programs as exceeding Congress's power under the Commerce Clause
• In A.L.A. Schechter Poultry Corp. v. United States (1935), the Court invalidated the National Industrial Recovery Act, finding that it regulated intrastate commerce and exceeded Congress's authority
• The Court's resistance to the New Deal led to Roosevelt's "court-packing" plan, which would have allowed him to appoint additional justices to the Court
• In NLRB v. Jones & Laughlin Steel Corp. (1937), the Court upheld the National Labor Relations Act and adopted a broader interpretation of the Commerce Clause, paving the way for further New Deal legislation

Warren Court and civil rights

• The Warren Court (1953-1969), led by Chief Justice Earl Warren, issued many landmark decisions expanding civil rights and civil liberties
• In Brown v. Board of Education (1954), the Court held that segregation in public schools violated the Equal Protection Clause of the Fourteenth Amendment
• In Gideon v. Wainwright (1963), the Court held that the Sixth Amendment's right to counsel applied to state criminal proceedings, requiring states to provide attorneys for indigent defendants
• In Miranda v. Arizona (1966), the Court held that police must inform suspects of their rights before interrogation, establishing the famous "Miranda warnings"

Controversies surrounding judicial review

Countermajoritarian difficulty

• The countermajoritarian difficulty is the concern that judicial review allows unelected judges to overturn the decisions of democratically elected officials
• Critics argue that this undermines the principle of majority rule and gives too much power to the judiciary
• Defenders of judicial review argue that it is necessary to protect individual rights and ensure that the majority does not tyrannize the minority

Judicial selection and confirmation

• The process of selecting and confirming federal judges, particularly Supreme Court justices, has become increasingly politicized in recent years
• Presidents often nominate judges who share their ideological views, and the Senate confirmation process has become more contentious, with some nominees facing strong opposition and even filibusters
• In 2016, the Republican-controlled Senate refused to hold hearings on President Obama's nomination of Merrick Garland to the Supreme Court, arguing that the next president should fill the vacancy
• In 2017, the Senate confirmed President Trump's nomination of Neil Gorsuch to the Court after changing the rules to allow a simple majority vote to end a filibuster of a Supreme Court nominee

Calls for judicial reform

• Some critics of the Supreme Court have called for reforms to limit the power of judicial review or change the composition of the Court
• Proposals include term limits for justices, a requirement for a supermajority vote to invalidate laws, and the appointment of additional justices to the Court
• Supporters of these reforms argue that they would make the Court more accountable and representative of the public, while opponents argue that they would politicize the Court and undermine its independence
• In 2021, President Biden appointed a commission to study potential reforms to the Supreme Court, but the commission's final report did not endorse any specific changes