14.3: Judicial Review

Originally, the federal judiciary was decidedly the weakest of the three branches of the national government. Preoccupied with debates over congressional representation and the power of the presidency, the Founders spent comparably little time during the Constitutional Convention debating the structure of the federal courts and left many of its powers undefined. Alexander Hamilton, writing in Federalist No. 78, remarked that the judiciary had “no influence over either the sword or the purse” — that is, no ability either to enforce its judgments or to raise and spend money to do so.

In its infancy, the Supreme Court had little clout with which to check either Congress or the president. It gained substantial power in 1803 as a result of the case Marbury v. Madison, in which it was asked to decide whether a federal judge appointed by outgoing President John Adams was entitled to his position under the Judiciary Act of 1789. Rather than side entirely with either William Marbury (the appointed judge) or James Madison (the new Secretary of State who had blocked the appointment), the Supreme Court (in an opinion written by Chief Justice John Marshall) ruled that the relevant section of the Judiciary Act under which Marbury was appointed was unconstitutional, thereby striking it down and rendering the question of Marbury’s appointment moot.

The court’s ruling in Marbury asserted for the first time the federal judiciary’s power of judicial review, by which it has the power to strike down both laws passed by Congress and executive actions undertaken by the president if it deems them unconstitutional. At the time, this ruling was controversial for boosting the power of the courts. Today, more than two centuries since Marbury, judicial review has become an accepted part of the American system of checks and balances.

Although judicial review is widely regarded as the proper role of the federal judiciary today, specific instances of it often spark controversy. Critics often accuse courts of engaging in judicial activism when they go beyond a strict interpretation of the law. Their concern is that activist judges are in effect “legislating from the bench,” usurping Congress’s rightful role as lawmakers and stretching constitutional and statutory language far beyond what it was originally intended to mean. Conversely, proponents of giving judges wide latitude to interpret the law argue that it is important to have a “living constitution” that adapts to societal and technological change without needing to be amended. Such adaption, the argument goes, sometimes necessitates loose and creative interpretation of legal language.

Accusations of judicial activism tend to crop up when the accuser is displeased with a court’s decision, whether or not that decision actually represents a departure from the meaning of the text. As with executive power, Americans tend to be much more forgiving of questionable uses of judicial power when the outcome is one they like.

A statue of Chief Justice John Marshall, whose decision in Marbury v. Madison greatly increased the Supreme Court’s power, watches over Washington, D.C.’s Judiciary Square.