§1.4 Judicial Review

• Jurisdiction: United States
• Publication year: 2022

§1.4 Judicial Review

Judicial review is the exercise by courts of their constitutional power to review federal, state legislation, executives, and/or administrative agencies wrongful actions where there are no remedies provided for such wrongs.

§1.4.1 Court's Power of Judicial Review

Under the Constitution, Congress can regulate the appellate jurisdiction of the Supreme Court and other courts. However, the regulation is conditional because Congress will not be allowed to bar the review of any direct or indirect Congressional action that offers no adequate remedy for a legal wrong. In Bartlett v. Bowen,⁶¹ the Supreme Court held that a statute precluding all judicial review of an enactment would be inconsistent with the doctrine of separation of powers, and that such provision removes from courts an essential function under an implied constitutional mandate. This deprives individuals of an independent forum for adjudication of a claim of constitutional right and this would be an infringement of due process.

§1.4.2 The Foundation of Judicial Review of Congressional Acts or Executive Actions

The Constitution does not expressly state nor give the Supreme Court or any court the power to determine the constitutionality of acts of other branches of government. The foundation was established in Marbury v. Madison.⁶² In that case, Marshall C.J., while delivering the opinion of the court, stated: ". . . [the] very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury and it is one of the duties of government to afford that protection."

He opined further that as the government of the United States is referred to as a government of laws, as opposed to of men, it will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right. Therefore, if a legal right has vested in an individual, it is for the judiciary to determine because the Constitution vests the whole judicial power in one Supreme Court, and inferior courts. The power is expressly extended to all cases arising under the laws of the United States.⁶³

It is important to note that even before Madison, the Supreme Court had, in earlier cases, affirmed the judicial power of courts to review state constitutions, statutes, and the acts of Congress.⁶⁴ These precedents have been maintained by courts, and the courts have to date affirmed that they possess the power of...