Abstract judicial review definition

JUDICIAL REVIEW

Judicial review, in its most widely accepted meaning, is the power of courts to consider the constitutionality of acts of other organs of government when the issue of constitutionality is germane to the disposition of lawsuits properly pending before the courts. This power to consider constitutionality in appropriate cases includes the courts' authority to refuse to enforce, and in effect invalidate, governmental acts they find to be unconstitutional.

Judicial review is America's most distinctive contribution to constitutionalism. Although courts have exercised judicial review almost from the beginning of American constitutional government, the question of the legitimacy of that judicial power has often provoked controversy as well as recurrent charges that American judges usurped the authority. Nearly two centuries of exercises of and popular acquiescence in the power have quieted the storms over its basic justifiability in recent decades, but vehement controversy continues regarding the proper scope and authority of judicial rulings on constitutionality. Moreover, particular exercises of judicial review continue to stir passionate political debates, as they have from the beginning.

The classic justification for judicial review was set forth by Chief Justice john marshall in marbury v. madison (1803). Marshall relied on general principles and constitutional text. His arguments from principle are not compelling. For example, his unchallengeable assertion that the Constitution was designed to establish a limited government does not demonstrate that courts should enforce those limitations. Constitutions prescribing limits on government had been adopted before 1803, as many have been since; but relatively few look to the judiciary for enforcement. Similarly, the fact that judges take an oath to support the Constitution does not imply judicial review, for the Constitution requires the oath of all federal and state officers. Far more persuasive are Marshall's references to two passages of the constitutional text. First, Article III lists cases "arising under the Constitution" as one of the subjects included within the judicial power of the united states, suggesting that constitutional questions can give rise to judicial rulings. Second, the supremacy clause of Article VI lists the Constitution first as among the legal sources that "shall be the supreme Law of the Land."

Although the inferences derivable from the constitutional text are not unchallengeable, they provide the strongest available support for Marshall's justification for judicial review. True, Article VI is specifically addressed only to state judges, for the "supreme Law of the Land" clause is followed by the statement that "Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Still, the constitutional convention debates and federal legislation, ever since Section 25 of the judiciary act of 1789, have contemplated Supreme Court review of state court rulings on constitutional questions, and it is surely plausible to argue that the Supreme Court's authority on review would be no less than that of state judges obeying the command of the supremacy clause.

Federal court review of state court judgments is an especially plausible aspect of judicial review, for it is a typical policing technique to maintain the delineations of governing authority in federal systems. That strand of judicial review is common in other federal schemes as well, as in Switzerland and Australia. Yet even federal systems are conceivable without judicial review. Thus, nationalists at the Constitutional Convention initially urged reliance on the congressional veto and on military force to curb excesses by the states. The supremacy clause, and its reliance on routine judicial power to enforce federalistic restraints, stemmed from suggestions by states' rights forces at the convention.

Judicial review in the interest of federalism has played an important role in the United States; some observers, indeed, view it as the most essential function of judicial review. As Justice oliver wendell holmes once put it: "I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States." The supremacy clause goes a long way toward assuring this protection of the Union; but it provides less compelling justification for judicial review of congressional acts.

The constitutional text cited by John Marshall supports judicial review in all its aspects in a more basic sense. Article III and Article VI both reflect the premise central to judicial reviewthe premise that the Constitution is to be considered a species of law and accordingly cognizable in courts of law. Judicial review is essentially the judicial enforceability of constitutional norms, and viewing the Constitution as law rather than mere policy or precatory adjuration is the keystone of the more persuasive argument that the American constitutional scheme was designed to rely on judges, not merely troops or political restraints, to enforce constitutional limits.

This view of the Constitution as lawthe view central to the argument for giving courts a major role in constitutional enforcementmade it relevant for Marshall to state that it was "emphatically the province and duty of the judicial department to say what the law is," and to describe judicial review as an outgrowth of the normal task of judges: to adjudicate the cases before them on the basis of all relevant rules of law, rules that include those stemming from the Constitution. And that in turn made it plausible for him to say that, where a statute and the Constitution conflict, the courts must enforce the superior Constitution and "disregard" the statute. That, to Marshall, was "of the very essence of judicial duty."

Even if Marshall's views of the Constitution as law and of the "judicial duty" were unanswerable, charges of usurpation would not be stilled. Whatever the strength of the inferences from Articles III and VI, it is undeniable that the power of judicial review is not explicitly granted by the Constitutionin contrast to the constitutions of the nations that, in modern times, have embraced systems similar to the American scheme of judicial review, such as West Germany, Italy, India, and Japan. Defenders of judicial review have accordingly sought to find added support for Marshall's conclusion in historical understandings and practices. None of the sources relied on, however, conveys overwhelming force.

For example, it is true that Marshall's argument was to a considerable extent anticipated by alexander hamilton in the federalist #78; but Hamilton's essay was after all only a propagandistic defense of the Constitution during the ratification debates. Similarly, the arguments from historical practice are inconclusive at best. The much invoked statement by edward coke in bonham ' scase (1610)that "the common law will controul Acts of Parliament, [and] adjudge them to be utterly void" when they are "against common right and reason"was inconsistent with British practice at the time and thus is not even respectable obiter dictum. More relevant was the appellate jurisdiction of the privy council over colonial courts; but invalidation of legislation through that route was rare and unpopular. And the much debated alleged precedents in the practice of state courts during the years immediately following independence hardly establish a well-entrenched practice of judicial review in the era of the articles of confederation. The preconstitutional examples that withstand scrutiny are few and controversial, and in any event it is not clear that many delegates at the Constitutional Convention knew about the scattered actual or alleged instances of invalidation of state laws by state judges.

Nor do the statements in the Constitutional Convention and the state ratification debates provide ironclad proof that judicial review was intended by the Framers. While it is true that most of the statements addressing the issue supported such a judicial power, it is equally true that only a minority of speakers at the Constitution framing and ratifying conventions expressed their views. The most important statements at the Constitutional Convention came during the discussion of the council of revision proposala proposal that the Justices join with the President in exercising the veto power. That proposal was rejected, partly on grounds supporting the legitimacy of judicial review. Thus, luther martin, in criticizing "the association of the Judges with the Executive" as a "dangerous innovation," argued that, "as to the Constitutionality of laws, that point will come before the Judges in their proper official character. In this character they have a negative on the laws. Join them with the Executive in the Revision and they will have a double negative."

Some scholars have argued, questionably, that judicial review was so normal a judicial function that it was taken for granted by the Framers. henry m. hart and Herbert Wechsler claimed to find clear support in the Convention debates: "The grant of judicial power was to include the power, where necessary in the decision of cases, to disregard state or federal statutes found to be unconstitutional. Despite the curiously persisting myth of usurpation, the Convention's understanding on this point emerges from its records with singular clarity." But with regard to original intent, edward s. corwin's Senate testimony on the 1937 Court-packing plan still represents a fair summary of the state of the record. Corwin stated that the "people who say the framers intended [judicial review] are talking nonsense," but he added that "people who say they did not intend it are talking nonsense." As Leonard W. Levy commented after noting Corwin's assessment that there is "great uncertainty" on the issue: "A close textual and contextual examination of the evidence will not result in an improvement on these propositions."

Most important in the search for preconstitutional bases for judicial review authority is probably the late-eighteenth-century prevalence of general ideas conducive to the acceptance of the power asserted in Marbury v. Madison. The belief in written constitutions to assure limited government was hardly an American invention, but Americans had an unusually extensive experience with basic, higher law documents of government, from royal charters to state constitutions and the Articles of Confederation. Yet it is possible to have constitutions without judicial review: to say that a government cannot exceed constitutional limits does not demonstrate who is to decide. It bears reiterating, then, that viewing a constitution as a species of "law" was the vital link between constitutionalism and judicial competence to decide constitutional issues. Moreover, the view that the Constitution was an act of the people rather than of the state governments helped provide an ideology congenial to Marshall's insistence that the courts could, in the name of the people, refuse to enforce the acts of the people's representatives.

Accepting the persuasiveness of Marshall's core argument is not tantamount to endorsing all of the alleged implications of judicial review that are pervasive in the late twentieth century. Marshall's stated view of the role of courts in constitutional cases was a relatively modest one; after nearly two centuries of exercise of judicial review by courts, and especially the Supreme Court, the scope and binding effect of judicial rulings are far broader. Most of Marshall's argument was largely defensive, designed to undergird judicial competence and authority to adjudicate issues of constitutionality. He insisted that the Constitution is "a rule for the government of courts as well as the legislature" and concluded that " courts, as well as other departments, are bound by that instrument." Modern perceptions, by contrast, often view the courts as playing a superior or supreme role in constitutional interpretation. Claims of judicial supremacy and sometimes even exclusiveness are widespread in scholarly statements and popular understandings. The extent to which such impressions are justifiable continues to give rise to sharp controversy.

Marshall's claims about judicial competence and authority were closely tied to a tripartite theory of government reflecting the separation of powers. He did not deny that other branches, including the President in the exercise of the veto power and Congress in enacting legislation, could andunder the oath to support the Constitution emphasized in Marbury itselfpresumably must consider issues of constitutionality. Marshall's argument that courts also have competence to take the Constitution into account in their work was essentially a "me too" position. Modern variants on justifications for judicial reviewand a number of statements from the modern Supreme Court itselflend stronger support than anything in Marshall's reasoning to a "me superior" or even a "me only" view.

Nearly from the beginning, Presidents have taken issue with Supreme Court rulings. thomas jefferson insisted that "nothing in the Constitution has given [the judges] a right to decide for the Executive, more than to the Executive to decide for them." And he argued that considering "the judges as the ultimate arbiters of all constitutional questions" was "a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy." Similarly, andrew jackson insisted, in vetoing the bill to recharter the Bank of the United States in 1832, that mcculloch v. maryland (1819) did not preclude his action: "Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the States can be considered as well settled." Similar statements are found in the utterances of later Presidents, from Abraham Lincoln to franklin d. roosevelt and beyond.

John Marshall was no doubt unhappy with the political statements of Jeffersonians and Jacksonians. Clearly, he would have preferred ready acceptance of his Court's glosses on the Constitution by all governmental officials and the entire nation. But nothing in the stances of the leaders of his day or since was in sharp conflict with anything in Marbury v. Madison. Jefferson, Jackson, and their successors did not deny the binding effect of the judges' constitutional rulings in the cases before them. But the Presidents insisted on their right to disagree with the principles underlying the Court decision. As Lincoln said in the course of his debates with stephen a. douglas, he did not propose that after Dred Scott had been held to be a slave by the Courtin dred scott v. sandford (1857)"we, as a mob, will decide him to be free." But, he added, "we nevertheless do oppose that decision as a political rule which shall be binding on the voter, to vote for nobody who thinks it wrong, which shall be binding on the members of Congress or the President to favor no measure that does not actually concur with the principles of that decision. [We] propose so resisting it as to have it reversed if we can, and a new judicial rule established upon this subject."

Does it follow that, if such presidential statements are consistent with Marbury v. Madison, the scheme sketched by Marshall in 1803 contemplated never-ending chaosa state of chaos in which the political branches of the national government, and the states as well, might forever disagree with the principles of Supreme Court decisions, in which the only way to implement the Court's principles would be to bring the resisting parties to court in multiple lawsuits, in which no constitutional question would ever be settled? Not necessarily, and certainly not in American experience. Judicial review has not meant that the Supreme Court's reasoning ends all constitutional debate, but neither has it meant endless litigation and dispute over every constitutional issue. Yet the reasons for the growing role of the Supreme Court in settling constitutional issues rest less on any legal principle underlying judicial review than on considerations stemming from institutional arrangements and from prudence. The only arguable basis in Marbury itself for viewing the courts as the ultimate arbiters of constitutional issues is Marshall's ambiguous statement that it is "emphatically the province and duty of the judicial department to say what the law is." That statement establishes judicial competence, as noted; but its ambiguity also may provide the basis for arguments for a special judicial expertise in constitutional matters and for a de facto judicial supremacy. Marshall's statement is not so strong, however, as a similar one from Hamilton, in The Federalist #78: "The interpretation of laws is the proper and peculiar province of the courts."

The widely observable phenomenon that a Court interpretation of the Constitution has significance beyond the parties to a particular lawsuit rests on other, stronger bases. A central one is that, to the extent a disputed constitutional issue arises in a lawsuit, and to the extent that the Supreme Court is the highest court in the judicial hierarchy, a Supreme Court interpretation is final. Technically, it is final only with respect to the parties in the case, to be sure; but the Court gives general reasons in resolving specific controversies, and the Justices normally operate under a system of precedent and stare decisis. Similarly situated parties not before the Court in the particular case ordinarily recognize that, other things being equal, the Court will adhere to precedent, will apply the same rule to them if litigation ensues, and accordingly choose not to engage in needless litigation.

Basically, then, the reason that the courts generally and the Supreme Court in particular wield such vast influence in Americans' understanding of their Constitution is that most constitutional issues can and do arise in lawsuits; and once they do, the courts, with the Supreme Court at the apex, do have the final say. As a result, most potential opponents of Court rulings follow the course implied in Lincoln's First Inaugural Address. Lincoln did not deny that Supreme Court decisions "must be binding in any case upon the parties to a suit as to the object of that suit" and "are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government." He added: "And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with a chance that it may be overruled or never become a precedent for other cases, can better be borne than could the evil of a different practice." From that position, Herbert Wechsler's rhetorical question plausibly follows: When the chance that a judicial ruling "may be overruled and never become a precedent for other cases has been exploited and has run its course, with reaffirmation rather than reversal of decision, has not the time arrived when its acceptance is demanded, without insisting on repeated litigation? The answer here, it seems to me, must be affirmative, both as to a necessary implication of our constitutional tradition and to avoid the greater evils that will otherwise ensue." Wechsler's admonition, it should be noted, is one of prudence, not of any necessary legal mandate stemming from the Marbury rationale.

Beginning in the late twentieth century, however, the Supreme Court has repeatedly claimed a greater import for its exercises of judicial review than anything clearly set forth in Marbury. A major example came in one of the cases stemming from the school desegregation controversy, cooper v. aaron (1958). The opinion in that case, signed by each of the Justices, provides the strongest judicial support for a view widely held by the publicthat the Court is the ultimate, the supreme interpreter of the Constitution. Rejecting the premise of the actions of the legislature and of the governor of Arkansas in that casethat they were not bound by the ruling in brown v. board of education (1954)the Court purported to "recall some basic constitutional propositions which are settled doctrine." The Justices quoted Article VI and Marshall's "province and duty of the judicial department" passage inMarbury and added: "This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution. [It] follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Article VI of the Constitution makes it of binding effect on the States. [Every] state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Article VI, 3, "to support this Constitution."

Similar statements have surfaced in other controversial cases in recent years, especially in baker v. carr (1962) (referring to the "responsibility of this Court as ultimate interpreter of the Constitution") and powell v. mccor-mack (1969) ("[It] is the responsibility of this Court to act as the ultimate interpreter of the Constitution. Marbury v. Madison. "). The Court in these cases was no doubt marshaling all possible rhetorical force in efforts to ward off actual or potential resistance from the states or from other branches of the federal government; but these broad modern assertions no doubt also reflect widespread popular understandings of the "ultimate" role of the Court, understandings bolstered by the nation's general acceptance of that role, despite frequent and continuing disagreements with particular decisions.

From the relatively modest assertions of the judicial review power in Marbury v. Madison, nearly two centuries of history have brought the Court increasingly close to the self-announced dominant role in constitutional interpretation it set forth in Cooper v. Aaron. That does not mean that Supreme Court interpretations are entitled to immunity from criticism, popular or academic. Nor does it signify the end of all political restraints on the Court, restraints stemming from the same Constitution that Marshall relied on in defending judicial review. Judges may be subjected to congressional impeachment and Congress may arguably curtail the federal courts' jurisdiction in constitutional cases. (See judicial system.) But both weapons, though frequently brandished, have rarely been used. Moreover, the constitutional amending process, albeit difficult to invoke, is available to overturn unpopular Court rulings. More significant, the composition of the Court as well as its size rest with the political branches, and the President's nominating role, together with the Senate's in confirmation, have been major safeguards against judges deviating too far from the national consensus. Despite these potential and actual checks, however, the Supreme Court's role in American government has outgrown both the view that it is the weakest branch and Marshall's own delineation of the judicial review power. What alexis de tocqueville recognized over a century and a half ago has become ever more true since he wrote: "Scarcely any question arises in the United States which does not become, sooner or later, a subject of judicial debate."

Even though historical exercises of judicial review and popular acquiescence have largely stilled the outcries that the federal courts usurped the power to consider the constitutionality of legislation, the core arguments on behalf of the legitimacy of judicial review, summarized by Marshall in Marbury v. Madison, continue to generate controversial implications. Two especially important and recurrent modern debates involve arguments reaching back all the way to Marbury. The first issue is whether courts should strain to avoid decisions on controversial constitutional issues by invoking such devices as the political question doctrine. The second issue concerns the proper sources of constitutional adjudication: Must courts limit themselves to "interpretation" of the Constitution, or are "noninterpretive" decisions also legitimate?

Courts confident about the legitimacy of judicial review may tend to exercise that power assertively; judges in doubt about the underpinnings of that authority may shrink from exercising the power to invalidate legislative acts and may indeed seek to escape altogether from rulings on the merits in constitutional cases. The connection between views of legitimacy and modern exercises (or nonexercises) of judicial review is illustrated by an exchange between learned hand and Herbert Wechsler. Hand insisted that there was "nothing in the United States Constitution that gave courts any authority to review the decisions of Congress" and that the text "gave no ground for inferring that the decisions of the Supreme Court [were] to be authoritative upon the Executive and the Legislature." He found the sole justification for judicial review in the practical need "to prevent the defeat of the venture at hand"to keep constitutional government from foundering. Wechsler retorted: "I believe the power of the courts is grounded in the language of the Constitution and is not a mere interpolation."

These contending positions have contrasting implications. Thus, Hand concluded that "since this power is not a logical deduction from the structure of the Constitution but only a practical condition upon its successful operation, it need not be exercised whenever a court sees, or thinks it sees, an invasion of the Constitution. It is always a preliminary question how importunately the occasion demands an answer." Wechsler countered that there was no such broad discretion to decline constitutional adjudication in a case properly before a court: "For me, as for anyone who finds the judicial power anchored in the Constitution, there is no such escape from the judicial obligation; the duty cannot be attenuated in this way." (That "duty," he cautioned, was "not that of policing or advising legislatures or executives," but rather simply "to decide the litigated case [in] accordance with the law.")

It is true that courts do often abstain from deciding constitutional questions pressed upon them. There is no question about the legitimacy of that phenomenon to the extent that courts rely on nonconstitutional, narrower grounds of decision in disposing of a case. Nor is there any doubt that courts need notand under the Marbury rationale may notdecide constitutional issues if they are not properly presented in a case because, for example, the litigation does not square with the case and controversy requirement of Article III. But twentieth-century courts have occasionally gone beyond such justifiable abstentions to claim a more general and more questionable authority to resort to considerations of prudence in refusing to issue rulings on the merits even though a case falls within the contours of Article III and even though congressional statutes appear to confer obligatory jurisdiction on the courts.

Some commentators have defended judicial resort to the "passive virtues"; others have attacked such refusals to adjudicate as often unprincipled and illegitimate. The controversy about the political question doctrine is illustrative. To the extent that the doctrine rests on constitutional interpretation, as it does under its strand regarding what the Court in Baker v. Carr (1962) called "a textually demonstrable constitutional commitment of the issue to a coordinate political department," it is undoubtedly legitimate. But the courts have often gone beyond that concern to refuse adjudication on the ground of a lack of judicially "manageable standards" and on the basis of even broader, wholly prudential considerations as well. Wechsler argued that, in political question cases, "the only proper judgment that may lead to an abstention from decision is that the Constitution has committed the determination of the issues to another agency of government than the courts. [What] is involved is in itself an act of constitutional interpretation, to be made and judged by standards that should govern the interpretive process generally. That, I submit, is toto caelo [by all heaven] different from a broad discretion to abstain or intervene." alexander m. bickel strongly disagreed, insisting that "only by means of a play on words can the broad discretion that the courts have in fact exercised be turned into an act of constitutional interpretation." He saw the political question doctrine as something different from the interpretive process"something greatly more flexible, something of prudence, not construction and not principle."

To the extent that the Supreme Court rests largely on discretionary, prudential concerns in refusing to adjudicateas, for example, it appears to have done in holding federalistic restraints on congressional power largely nonjusticiable in garcia v. san antonio metropolitan transit authority (1985)it raises questions of legitimacy under Marbury v. Madison. Courts deriving their authority from a premise that the Constitution is law, as the Marbury argument does, are not authorized to resort to discretionary abstention devices not justified by law. As Marshall himself pointed out in cohens v. virginia (1821): "We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given." But discretionary devices of self-limitation have become commonplace in judicial behavior, as a result of glosses articulated by modern judges rather than because of anything in the Constitution itself or in Marshall's reasoning. (See comity.)

There is a second modern issue, especially pervasive and controversial, in which the rationale of Marbury v. Madison affects debates about judicial review: Are the courts bound to limit themselves to "interpretations" of the Constitution in exercising judicial review? Marshall's reasoning in Marbury suggests that "noninterpretive" rulings are illegitimate. A justification that derives judicial review from the existence of a written constitution and from the premise that the Constitution is a species of law implies that the courts are confined by the Constitution in delineating constitutional norms. And courts indeed almost invariably purport to rest their constitutional rulings on "interpretations" of the basic document.

But modern academic commentary is sharply divided on this issue. Most scholars who insist on "interpretation" as the sole legitimate ingredient of constitutional rulings do not argue for a narrow, strict interpretation based solely on a literal reading of the constitutional text or a specific basis in the Framers' intent. But their "broad interpretivist" position does insist that constitutional rulings must rest on a clear nexus toand plausible inference fromthe Constitution's text, history, or structure. The "noninterpretivist" critics of that position emphasize the many opaque and open-ended phrases in the Constitution and the changing interpretations of these phrases over the years. They claim that the Court's behavior cannot be squared with even a broad interpretivist position and argue that the Court has always relied on extraconstitutional norms. These critics insist that "noninterpretivist" decision making is justified not only by the history of the Court's elaborations of such vague yet pervasive concepts as substantive due process but also by the appropriate role of courts in American constitutional democracy. The noninterpretivist literature accordingly abounds with suggestions of sources courts might rely on in the search for fundamental, judicially enforceable valuessources that range from moral philosophy to contemporary political consensus and analogies to literary and scriptural analyses.

The interpretivist arguments that draw in part on Marshall's justification for judicial review have difficulty explaining the Court's performance in "reinterpreting" the Constitution in light of changing societal contexts. The noninterpretivist position has difficulty squaring its arguments with the Marbury view of the Constitution as a species of law. That position has difficulty as well in articulating limits on the legitimate ingredients of constitutional decision making that safeguard adequately against excessive judicial subjectivismagainst the specter reflected in Learned Hand's fear of being "ruled by a bevy of Platonic Guardians." Whether constitutional decision making by judges can continue to contribute to the flexibility and durability of the Constitution without deteriorating into merely politicized and personalized rulings that risk subverting the legitimacy of constitutional government is the central and unresolved challenge confronting modern judicial review.

Gerald Gunther
(1986)

(see also: Interpretivism; Noninterpretivism.)

Bibliography

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