What Power Does Judicial Review Give the Supreme Court?

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Judicial review gives the U.S. Supreme Court the power to declare that a legislative or executive act violates the Constitution.

The U.S. Supreme Court is the highest court in the land. The U.S. Constitution grants the Court authority to have the final say in any federal case. The Constitution also gives it original jurisdiction to hear and decide any cases brought by one state against another. But the most important power of the United States Supreme Court is one it gave itself.

TL;DR (Too Long; Didn't Read)

Judicial review gives the U.S. Supreme Court the power to declare that a legislative or executive act violates the Constitution.

The Court's Authority in the Constitution

The founding fathers wrote the authority of the U.S. Supreme Court into the Constitution. Article III, Section II of the Constitution describes both the original jurisdiction and the appellate jurisdiction of the Court.

Original jurisdiction is relevant to the types of cases that can be first heard before the Court. The Supreme Court's original jurisdiction includes cases between two or more states and cases involving foreign ambassadors and other public ministers. Appellate jurisdiction applies to cases the court can hear on appeal. These include appeals from the Circuit Courts of Appeal.

The Court's Judicial Review Authority

Remember the famous checks-and-balances you learned about in high school? It is actually the Supreme Court's power of judicial review that sets up those checks and balances. And that authority wasn't mentioned in the Constitution.

Judicial review describes the Court's authority to decide that an action of the Legislature or of the Executive branch (including the President) violates the Constitution. If you try to find this spelled out in the Constitution itself, you might be looking for a long time, since it isn't there. The Court itself established the doctrine of judicial review in an 1803 case called Marbury v. Madison, when it found that it had authority to declare legislation unconstitutional.

In that case, the Supreme Court found that an act of Congress called the Judiciary Act of 1789 conflicted with the U.S. Constitution. The Act gave the Supreme Court original jurisdiction to order government officials to act in accordance with the law. The Plaintiff Marbury brought a case under that Act, but the Supreme Court noted that the Constitution did not give the Court original jurisdiction in this matter. Since the Constitution is the Supreme Law of the Land, the Court held that a legislative act that is contrary to the Constitution cannot stand.

Import of Judicial Review Power

The Supreme Court plays a critical and central role in the government of the United States. Thanks to the power of judicial review, the Court can force each branch of government to stay within the limits of its authority. It can also protect individual liberties by striking down laws that violate the Constitution. And it protects the rights of minorities, since the views of the majority cannot undermine the fundamental rights granted in the Constitution.

A few of the critical judicial review decisions that shaped this country include:

  • In Brown v. Board of Education (1954), the Supreme Court struck down state laws establishing separate public schools for black students, ruling that the laws violated the “equal protection” clause of the Fourteenth Amendment.
  • In Loving v. Virginia (1967), the Supreme Court struck down a Virginia statute that prohibited interracial marriage, also on equal protection grounds.
  • In Roe v. Wade (1973), the Supreme Court struck down state laws that made abortion illegal as violating the right to privacy.

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About the Author

Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.