Judicial Review and the U.S. Constitution

As one of three branches of the U.S. government, the judiciary is part of the checks and balances at the center of American constitutional government. Checks and balances is the governmental system under which the powers of each branch of governmentare restrained and balanced by those of the other branches to prevent the accumulation of too much power by any one branch. The federal courts have the final say on whether an executive action or legislation passed by Congress is constitutional or whether it is a violation of the law, thus checking the power of the executive and legislative branches. However, federal judges are appointed by the president and confirmed by the Senate, a process that checks the judiciary's power. Congress also has the power to impeach and remove federal judges, providing another check on judicial power. Congress and the states together provide one more check on judicial power. Congress can pass and the states can ratify a constitutional amendment that overrides a Supreme Court decision. For example, the pre–Civil War court declared in Dred Scott v. Sandford (1857) that African Americans could not be citizens. After the Civil War, Congress passed and the states ratified the 14th Amendment (1868), which declared that "all persons born or naturalized in the United States . . . are citizens," which rendered that portion of the Dred Scott decision moot. Article 3 of the Constitution has limited instructions for the creation of the judiciary. Section 1 states, "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

The First Congress passed the Judiciary Act of 1789, the law that created the U.S. Supreme Court and the lower federal court system. The act allowed for six Supreme Court justices. This number fluctuated until it was fixed at nine after the Civil War. The Judiciary Act of 1789 also expanded the authority and responsibilities of the Supreme Court beyond what is described in the Constitution. This increased authority included the power of the Court to issue a writ of mandamus, or a formal order to a government official to fulfill the duties of the official's office. The act's allowance of writs of mandamus resulted in the judiciary claiming one of its most important powers: the power of judicial review. Judicial review is the right of a court to review the laws and actions of the other two branches. Marbury v. Madison was the 1803 Supreme Court ruling that established the principle of judicial review.

In 1801 outgoing president John Adams appointed a number of new federal judges. Adams nominated candidates who were, like him, Federalists, hoping to protect Federalist influence under incoming president Thomas Jefferson, a Democratic-Republican. The Senate confirmed the appointments. However, not all of the commissions, or formal assignments, were delivered to the new judges by the time Jefferson assumed the presidency. Intending to fill the posts with friendlier judges, Jefferson directed his secretary of state, James Madison, not to deliver the remaining commissions. William Marbury, one of the individuals who did not receive his commission, petitioned the Supreme Court to issue a writ of mandamus forcing Madison to deliver the commission.

John Marshall, chief justice of the U.S. Supreme Court (1801–35), realized the case presented a problem of authority for the court. If the court issued the writ of mandamus, Madison was unlikely to obey it. Unable to enforce its ruling in any way, the court would look ineffectual. However, if the court did not issue the writ, it would appear that the justices were simply deferring to the executive branch, making it look weak.

In his ruling, Marshall avoided these undesirable outcomes by approaching the case from another angle: constitutionality. Marshall and a unanimous court declared that the court actually had no right to issue a writ because the section of the Judiciary Act that authorized a writ of mandamus was unconstitutional. The court then dismissed Marbury's case on the grounds of lack of jurisdiction, or a court's authority to hear and decide a case. Importantly, Marshall's ruling included this statement:

It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.