The Power of Review

Judicial review is not just held by the Supreme Court, it is also possessed by state and federal courts. The power to look at the laws and actions of the other branches of government is an American notion and spelled out in the Constitution.

It's Supreme

Article VI, Clause 2 of the U.S. Constitution declares that the Constitution is the supreme law of the land "and the Judges of every state shall be bound thereby." This is often called the Supremacy Clause and courts uphold this by judicial review.

Federal Courts

Judicial review is spelled out in the Constitution for state courts, but not the federal court system. In Marbury v. Madison, 5 U.S. (1 Cranch) 137, (1803), the Supreme Court ruled an act of Congress unconstitutional, establishing judicial review in the federal system.

Too Active?

As the courts exercise their power of judicial review, charges of "judicial activism" are often heard. Judicial activism is the accusation that the courts are acting more like a legislative body than determining if a law passes constitutional muster.

Judicial Review Principles

Clear unconstitutionality is the only grounds for a federal court to strike down a federal act. State laws that conflict with a valid federal statute may be stricken as a violation of the Supremacy Clause. A federal court may not strike down a statute absent a violation of federal law or of the U.S. Constitution.

Judicial Review Limitations

A federal court cannot strike down a statute even if it recognizes that the statute is obviously poorly drafted, irrational or arises from legislators' corrupt motives, unless the flaw in the statute rises to the level of a clear constitutional violation. In 2008, Justice John Paul Stevens restated this limitation: "[A]s I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: 'The Constitution does not prohibit legislatures from enacting stupid laws.' "

Source:

West's Encyclopedia of American Law: Judicial Review; Ed. Shirelle Phelps and Jeffrey Lehman, 2005

Findlaw: The Establishment of Judicial Review

Findlaw: New York State Bd. of Elections v. Lopez Torres

Resource:

U.S. Department of Justice