Judicial Review

This article records tradition as it has been passed down and reported. Its sources are not yet part of the atlas's verified catalogue.

Judicial review, the power of American courts to strike down a law as unconstitutional, is not written into the Constitution's text. It was established by the Supreme Court itself, in a 1803 case that began, oddly enough, with a piece of undelivered mail. In the final days of his administration, President John Adams appointed William Marbury as a justice of the peace for the District of Columbia, and the Senate confirmed the appointment, but the commission documenting it was never delivered before Adams left office. The incoming secretary of state, James Madison, acting for the new president Thomas Jefferson, refused to deliver it. Marbury sued directly at the Supreme Court, asking for a writ of mandamus ordering Madison to hand over the commission, under a power Congress had given the Court in the Judiciary Act of 1789. Chief Justice John Marshall's opinion, issued in February 1803, walked through the case in an unusual order. Marbury did have a right to his commission, Marshall wrote, and the law did generally provide a remedy for that kind of wrong. But the Court, Marshall concluded, could not actually issue the writ Marbury wanted, because the provision of the Judiciary Act that appeared to grant the Supreme Court this original jurisdiction conflicted with the narrower jurisdiction the Constitution itself set out. Faced with that conflict, Marshall declared, a law repugnant to the Constitution is void, and it is the judiciary's role to say so. Marbury lost his commission. The Supreme Court gained a power no one had definitively established it held before, the authority to invalidate an act of Congress, a ruling that has shaped the balance between America's three branches of government ever since.

This article records tradition as it has been passed down and reported. Its sources are not yet part of the atlas's verified catalogue.

Judicial review solves one problem and immediately raises another. If unelected judges can overturn a law passed by elected representatives, on what basis does that override count as democratic at all. The Yale law professor Alexander Bickel gave this tension its lasting name, the countermajoritarian difficulty, in his 1962 book The Least Dangerous Branch, arguing that when courts strike down legislation they are, in his words, exercising control not in behalf of the prevailing majority but against it. Bickel's phrase became the organizing question for decades of American constitutional theory that followed. One influential answer came from the legal scholar John Hart Ely, who argued that judicial review, properly used, is not actually anti democratic at all, so long as courts focus on keeping the channels of political change open, protecting voting rights and the rights of groups too politically marginalized to defend themselves through ordinary elections, rather than substituting judges' own policy preferences for the legislature's. On this view, courts reinforce representative democracy rather than undermining it. Other constitutional scholars have pushed back on Bickel's framing from a different direction entirely, arguing that the difficulty was never really about courts alone, since the United States Constitution embeds plenty of other counter majoritarian features, an unelected judiciary among them, but also a Senate that gives small states outsized power and an Electoral College that can separate the popular vote from the electoral outcome. Judicial review, on this reading, is simply the most visible instance of a design choice the framers made throughout the Constitution, favoring stable structural checks over pure, unmediated majority rule, not a unique aberration invented by the courts themselves.