The History of Judicial Review

The power of judicial review — the ability of the Supreme Court to declare laws unconstitutional — is not explicitly mentioned in the Constitution. So how did the Court get this extraordinary power?

Marbury v. Madison (1803)

The story begins with one of the most important cases in American history. After President John Adams lost the 1800 election to Thomas Jefferson, Adams tried to appoint a number of judges before leaving office. One of those appointees, William Marbury, never received his official commission.

Marbury asked the Supreme Court to order the new Secretary of State, James Madison, to deliver his commission. Chief Justice John Marshall faced a dilemma: if he ordered Madison to act, Jefferson would likely ignore the order, weakening the Court. If he did nothing, the Court would appear powerless.

Marshall's brilliant solution: he ruled that Marbury had a right to his commission, but that the law giving the Court the power to order its delivery was itself unconstitutional. By striking down a law for the first time, Marshall established the principle that the Court has the power to review laws and determine their constitutionality.

The Power Grows

Judicial review was used sparingly in the early years. The Court did not strike down another federal law until the infamous Dred Scott decision in 1857. After the Civil War, the Court became more active in reviewing both federal and state laws.

Landmark Uses

Some of the most significant uses of judicial review include:

• Brown v. Board of Education (1954): Struck down state laws requiring racial segregation in schools
• Miranda v. Arizona (1966): Required police to inform suspects of their rights
• Roe v. Wade (1973): Found a constitutional right to abortion (later overturned in 2022)
• Obergefell v. Hodges (2015): Struck down state bans on same-sex marriage
• Dobbs v. Jackson (2022): Overturned Roe v. Wade, returning abortion regulation to the states

The Debate Continues

Judicial review remains controversial. Critics argue that unelected judges should not have the power to override laws passed by elected representatives. Supporters counter that the Court serves as a vital check on government power, protecting individual rights against majority rule. This tension is at the heart of many debates about the Court's proper role in American democracy.