Judicial review is one of the most important powers wielded by the Supreme Court of the United States. The power of judicial review was not in the Constitution. Also, it was not formulated until the third president, Thomas Jefferson, was in office. Americans often like to think of the Founding Fathers, the creators of the Constitution, as a group of infallible and omniscient men. But they were mere mortals who could not envisage every contingency. Many governmental precepts developed over time, and judicial review is one of them.
Judicial review means the Supreme Court can declare any law unconstitutional. Its use solidifies the judiciary's role as an equal branch of the government—along with the legislative and executive branches. It was established by the Marbury v. Madison Supreme Court case of 1803.
The examples set by outstanding men helped shape the national government. The presidency was molded by George Washington; the Supreme Court was shaped by John Marshall—the fourth Chief Justice. Marshall, known as the Great Chief Justice, was an extraordinary figure. He was Chief Justice from 1801 to 1835. Without Marshall, judicial review probably would not have developed.
Judicial review has been decisive in determining some historic and momentous cases. For example, Roe v. Wade overturned state laws that outlawed abortion. And Citizens United nullified laws that limited spending by corporations on elections.
How did the Supreme Court get the power of judicial review?
The Supreme Court received this power after the famous Marbury vs. Madison case in 1803. Accordingly, James Madison (Thomas Jefferson's Secretary of State) refused to seat William Marbury as a District of Columbia justice of the peace. The Supreme Court ruled that it was wrong of Jefferson to use his executive authority to prevent the seating of a judge. Marbury had actually been appointed by John Adams, the previous president. His nomination was approved by the senate during Adam's tenure as president. However, James Madison, the new secretary of state, refused to deliver Marbury's commission. Without the commission, Marbury could not be seated.
Unfortunately, although the court ruled that it was wrong not to seat Marbury, it also ruled that it had no jurisdiction over the executive office of president and could not force Jefferson to seat Marbury.
Does the US Constitution specifically designate the power of judicial review to the Supreme Court?
No, it does not.
How can one request the Supreme Court accept and review a legal case?
Anyone who is unsatisfied with the decisions of a lower court may petition the Supreme Court for a review. To request a review, petitioners must ask the Supreme Court to grant a writ of certiorari. Once this is done, the Supreme Court can decide whether it will order a lower court to send up a record of the court case. Note that the Supreme Court is under no obligation to review legal cases that have already been tried in appellate courts.
To accept a case, 4 of the 9 justices must vote to hear the case. However,...
See This Answer Now
Start your 48-hour free trial to unlock this answer and thousands more. Enjoy eNotes ad-free and cancel anytime.
Already a member? Log in here.
when a request for a stay of execution is made, 5 of the 9 justices must vote to grant a stay. In special circumstances, one Supreme Court justice may grant a stay, but the decision will subsequently be reviewed by the entire court.
How does the Supreme Court decide which cases to accept for review?
The Supreme Court can accept or reject any case. However, it is more inclined to hear cases that have a national impact or that could set an important precedent. An example would be Obergefell vs. Hodges, when the Supreme Court voted to reverse the Sixth Circuit's decision. The 5-4 Supreme Court decision made same-sex marriage legal in all 50 states. Justice Anthony Kennedy wrote for the majority.
What does it mean to "have standing" in a legal case?
Legal standing or locus standi means that the petitioner has the right to bring his/her suit to court. The petitioner has to show that he/she has sustained harm/injury or may sustain future harm from the defendant's actions.
What happens if the Supreme Court’s decision results in a tie?
In the case of a tie, the decision of a lower court is upheld.
Which national issue/debate do you think the US Supreme Court needs to review in the near future?
This will depend upon events of import to our country. Below, I provide two links that list granted Supreme Court cases for the 2018-2019 term.
The concept of judicial review is the power of the Supreme Court to declare a law passed by the executive or legislative branches unconstitutional. This power comes from the Supreme Court case Marbury v. Madison (1803) and does not come from the Constitution.
Most of the cases the Supreme Court hears are appeals, meaning the cases have been tried by a lower court. If you want the Supreme Court to hear a case, you must first ask the Supreme Court to grant a writ of certiorari, meaning a request for a lower court to send its records to the Supreme Court. The Supreme Court is asked to hear about 7,000 cases each year and only accepts about 100–150 of these cases. The court generally hears cases that affect the entire country, that set an important legal precedent, and that have been tried by the US Court of Appeals or the highest court in a particular state.
"Having standing" means having the ability to bring a case to court, usually because the plaintiff has suffered or will suffer redressable harm. As there are usually nine justices on the court, a tie is rare; however, occasionally, a justice will be missing or recuse him or herself from a case. In the case of a 4–4 tie, the decision of the lower court, usually a state supreme court, stands. In 2017, the court will soon hear a case about the rights of transgender people.
Further Reading
Explain the concept of Judicial Review. How did the Supreme Court get the power of judicial review? Does the US Constitution specifically designate the power of Judicial Review to the Supreme Court?
Judicial review is the Supreme Court's power to declare laws and executive actions to be unconstitutional. Judicial review can apply to laws passed by Congress, state actions, the actions of federal bureaucracies, and presidential actions.
Interestingly, this power is not enumerated in the Constitution itself. It is a power that the Supreme Court gave itself as a result of the case of Marbury v. Madison (1803). In his decision, Chief Justice John Marshall ruled that the Supreme Court has the power to review, uphold, and strike down executive actions and laws in accordance with the Judiciary Act of 1789.
Although the power of judicial review has existed for over two hundred years, it is seldom used. The Supreme Court does not want to appear too political. That could lead to people distrusting its judgment. Also, frequently striking down laws would make it difficult for people to know which laws to follow to begin with. As a result, the Supreme Court usually defers to the actions and decisions of Congress and governmental bureaucracies unless a law or action is blatantly unconstitutional.
Some have made the argument that judicial review is unconstitutional, as it gives the judiciary power over the legislature and executive that is not defined in the Constitution. However, it has lasted for over two centuries because of the long-standing practice of upholding past Supreme Court decisions known as Stare Decisis.