What is judicial review?

#The dispute behind Marbury v. Madison

In February 1801, Congress passed a law for the District of Columbia that let the president name justices of the peace to serve for five years. President John Adams signed a commission naming William Marbury to one of these posts, and the seal of the United States was affixed to it, but the commission never reached him. The new secretary of state, James Madison, refused to deliver it. At the December 1801 term, Marbury and three others asked the Supreme Court for a writ of mandamus, an order commanding Madison to deliver their commissions.

#What the Court decided

Chief Justice John Marshall’s opinion, from the February Term of 1803, took up three questions.

• Did Marbury have a right to the commission? Yes. Refusing to deliver it violated that right.
• Did the law give him a remedy? Yes.
• Could the Supreme Court issue this order? No.

The act establishing the federal courts authorized the Supreme Court to issue such orders to people holding federal office. But Article III gives the Court original jurisdiction only in cases affecting ambassadors, other public ministers and consuls, and cases in which a state is a party. An order to the secretary of state to deliver a paper, the Court reasoned, was in effect an original action, not an appeal. It said the statute’s grant of authority “appears not to be warranted by the constitution.” The opinion’s last line reads, “The rule must be discharged.”

#How the opinion reasoned

Marshall began with the idea that written constitutions are “the fundamental and paramount law of the nation,” so “an act of the legislature repugnant to the constitution is void.” When a law and the Constitution both apply to a case, he wrote, “the court must determine which of these conflicting rules governs the case.” He offered an example. The Constitution says “no tax or duty shall be laid on articles exported from any state.” Suppose a duty on exports of cotton and a suit to collect it. Marshall asked whether judges ought “to close their eyes on the constitution, and only see the law.” He also pointed to the oath judges take to support the Constitution.

The National Archives notes that nothing stated in the Constitution specifically gave the Court this power. The Court’s website adds that state courts had overturned legislative acts under state constitutions before 1789.

#What courts can do

The Supreme Court describes judicial review as its authority to invalidate legislation or executive actions that, in its judgment, conflict with the Constitution. Article VI also binds judges in every state to the Constitution and to federal law. A Supreme Court ruling on a constitutional issue can be altered only by a constitutional amendment or by a new ruling of the Court. A ruling on what a statute means is different, because new legislation can follow it.

#What courts cannot do

• Give advice. The Constitution limits the Court to “Cases” and “Controversies.” Chief Justice John Jay declined to advise President George Washington on a proposed foreign policy decision, and the Court says it “does not give advisory opinions.”
• Rule without a real dispute. In Muskrat v. United States (1911), Congress had authorized suits to test acts of Congress. The Court called this “an attempt to provide for a judicial determination, final in this court, of the constitutional validity of an act of Congress” and ordered the suits dismissed.
• Hear anyone who objects. Under Lujan v. Defenders of Wildlife (1992), a federal plaintiff must show a concrete injury, a connection between that injury and the challenged conduct, and a likelihood that a favorable decision would redress it. This is called standing.
• Decide political questions. In Nixon v. United States (1993), a former federal judge, Walter Nixon, challenged how the Senate tried his impeachment. The Constitution gives the Senate the “sole Power to try all Impeachments,” and the Court held that the claim was not one for the courts to decide.