14.4: Judicial Review

Originally, the judicial branch was decidedly the weakest of the three. Preoccupied with debates over Congress and the presidency, the Founders spent little time at the Constitutional Convention debating the structure of the federal courts. Many of its powers were left undefined. Alexander Hamilton, writing in Federalist No. 78, remarked that the judiciary had “no influence over either the sword or the purse.” In other words, it had 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 court ruled that the section of the Judiciary Act which gave it jurisdiction over Marbury’s case was unconstitutional, thereby striking it down and rendering the question of his appointment moot.

Although Adams signedMarbury’s judicial commission while he was still president, his Secretary of State John Marshall failed to deliver it to Marbury before Adams’s successor, Thomas Jefferson, took office. At the time, Marshall was already serving on the Supreme Court as chief justice (having been nominated by Adams). Thus, when Marbury came before the Supreme Court, Marshall was called to rule on a case prompted by his own actions as Secretary of State.

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.

In Marbury, the court asserted for the first time its power of judicial review, which allows it to strike down both laws passed by Congress and executive actions by the president if it deems them unconstitutional. At the time, this ruling was controversial for boosting the court’s authority. Today, more than two centuries hence, judicial review is 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, it often sparks controversy. Critics frequently accuse courts of engaging in judicial activism when they make sweeping rulings, overturn previous decisions, interfere with the actions of the legislative and executive branches, or seem to rule based more on their personal opinions about what the law should be than on an unbiased assessment of what the law is. Exactly what counts as judicial activism is disputed. Those who accuse judges of activist behavior tend to be displeased with a court’s decision, which makes it hard to disentangle principled objections to judicial conduct from dissatisfaction with the results of that conduct. As with presidential behavior, Americans tend to be much more forgiving of potentially improper judicial behavior when the outcome is one they like.