Question

Analyze the exercise of judicial review. What is judicial review, what are its origins, and why has it remained an unquestioned power of the courts for so long? Provide some examples of notable uses of judicial review in Supreme Court history.

• Response length requirement: 350 words or more

Answer 1

There are four components to this question:

a. Judicial review: This is the power of the courts to review and, if necessary, declare actions of the legislative and executive branches invalid or unconstitutional.

b.   Origins of judicial review: The Constitution does not explicitly give the Supreme Court the power of judicial review over congressional enactments, and it is not known whether the framers of the Constitution opposed judicial review. The Supreme Court first asserted the power of judicial review in Marbury v. Madison (1803).

c.   Why judicial review has been unquestioned for so long: The Court’s legal power to review acts of Congress has not been seriously questioned since 1803. One reason for that is that the Supreme Court makes a self-conscious effort to give acts of Congress an interpretation that will make them constitutional. In more than two centuries, the Court has concluded that fewer than 160 acts of Congress directly violated the Constitution.

d.   Notable examples: There are numerous examples. In the 1954 case of Brown v. Board of Education, the Court overturned statutes from Kansas, South Carolina, Virginia, and Delaware that either required or permitted segregated public schools, ruling that such statutes denied black schoolchildren equal protection under the law. In Lawrence v. Texas, the Court ruled that Texas’s law criminalizing sodomy violated the right to liberty protected by the due process clause.