Free «The Coming and Going of Judicial Review» Essay Sample


Separation of powers is one of the signs of democratic governance. US Constitution embraces this principle. Thus, the Constitution defines that there is legislative, executive and judicial power. One of the most important functions of judicial power is judicial review. Judicial review can be described as an examination of the appropriateness of governmental actions. This paper explains basic standards of judicial review, discusses judicial review in the context of democracy and system of checks and balances, underlines weakness of the judiciary, and explains how the people may influence courts.


Judicial review can be conducted only if certain requirements are met. The basic requirements for judicial review are: jurisdictional, reviewability, standing, ripeness, and exhaustion. The jurisdiction standard means that a plaintiff may seek judicial review only in courts that can hear the case. Statutes, very often, indicate the courts which have jurisdiction over matters regulated. For instance, the Clean Air Act provides that an action of the US Environmental Protection Agency regarding the promulgation of any air quality standard can be challenged in the US Court of Appeals for the District of Columbia. The reviewability element denotes that the court has the authority to reconsider governmental action challenge and decide whether such an action needs to be altered. Governmental action is not reviewable, if its judicial review is statutorily prohibited. The standing requirement means that a plaintiff should demonstrate that he suffered injury in the result of governmental action. In other words, a plaintiff cannot raise only hypothetical questions but needs to show that he has real stakes in a dispute. In Lujan v. Defenders of Wildlife, the Supreme Court has found that US environmental groups lacked standing to challenge regulations that provided US aid to Egypt to construct dams on the Nile River. In this case, the Supreme Court recalls that the constitutional minimum of standing requirement includes three basic elements: actual injury suffered by plaintiff, causal connection between the injury and the conduct challenge, and the likelihood whereby “the injury will be redressed by a favorable decision”. The ripeness standard provides that judicial review is possible only when governmental decision is final. The exhaustion requirement means that a plaintiff should complete all agency appeals procedures prior to challenging agency action in the court. In other words, a plaintiff cannot bring an action to the court until he has exhausted all agency review procedures.


The power of judicial review was rendered to the Supreme Court by virtue of a decision in case of Marbury v. Madison. The Marbury became the first case when the Supreme Court held the congressional act to be unconstitutional. In particular, the court held that the provision under the Judiciary Act, which prevented the court’s authority to issue a writ of mandamus, in fact, was unconstitutional. This case established that the Supreme Court has a power of judicial review. Chief Justice Marshall pointed out,

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“…if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty”.

In other words, the Supreme Court admitted that it is its judicial duty to examine the constitutionality of laws. The Marbury decision laid down the tradition of judicial review of laws and regulations. It is worth mentioning that the US constitution does not explicitly render a power of judicial review of laws and regulations to the judiciary. The importance of the Marbury, therefore, is that it established a ground on which such power exists. The decision of the Supreme Court in Marbury case stroke many unconstitutional laws. Thus, in the period between 1803 and 2003, 155 acts of Congress or their separate provisions were held to be unconstitutional.


There are opposing views on the role of judicial review. Some scholars believe that extended judicial review leads to limitation of democracy. Such a claim is based on the contention that judges of the Supreme Court are not elected, and thus, may not challenge laws adopted by elected politicians, e.g. Congressmen, the President and so on. One may observe that such claim has a point. Indeed, judicial review often leads to change of law. In this way, as the opponents of judicial review claim, it represents a threat to democracy. In particular, the opponents of judicial review point out that it is not the court that has a power to change laws but elected legislators. In the United States, judicial review is criticized, on many occasions. For instance, the Supreme Court is often criticized for placing limits on congressional power. Some scholars consider such constraints as artificial. The Supreme Court, indeed, limited congressional power on many occasions. Thus, the Supreme Court held that the Congress exceeded its power when it passed the Gun-Free School Zone Act of 1990 (United States v Lopez). Moreover, congressional regulations of interstate commerce do not cover property used as a private residence (Jones v United State). Finally, the Congress cannot exclude a duly elected member for the reason other than failure to meet the constitutional qualifications (Powell v McCormack). As one may observe that the Supreme Court interferes with congressional power. However, it is doubtful that such interference can be harmful for democracy. The cited examples illustrate that the Supreme Court only upheld democratic standards. At the same time, there are also decisions which raised a lot of controversies. One of the most criticized decisions of the Supreme Court is that one in Bush v. Gore. In this case, the Supreme Court held that the different standards of vote recount violate the Equal Protection Clause of the US Constitution. Some scholars point out that such a decision lacks reasoning and judges were governed by considerations of political rationality, and not the rule of law. Overall, one may observe that there is certain controversial aspect in the fact that the Supreme Court changes the law enacted by elected legislators. At the same time, judicial review prevents power abuse and strikes down unconstitutional laws. This is important to shape the rule of law, which in its turn, constitutes one of the main principles of democracy.


Despite significant law making power, the judiciary remains the weakest branch of power in the United States. One must understand, that while judges can make laws by adopting decisions, their law making power is much less significant than the lawmaking power of  Congress, or the President. Congress may pass acts. The president may issue executive orders. Governmental agencies are often authorized to promulgate regulations specifying laws enacted by Congress. Judges, however, cannot enact laws or promulgate regulations. Judges may only decide whether law, or regulation is constitutional, or whether the principles of law are enforced correctly. Moreover, judges cannot change the law by their own initiative. In other words, judges do not possess legislative initiative – they cannot introduce bills into Congress. Judge may only review and modify the law when there is an external initiative – when there is a plaintiff who complains about the law. However, plaintiff’s action is not the only condition upon which courts may decide cases. Earlier in this paper, the author outlined the basic elements of judicial review. Without all these elements present, the court cannot proceed with judicial review. In a word, the judges cannot act relying on their own initiative, in order to change the law. They may only act when a party affected by law asks the court to change it. In other words, the nature of court’s law making power significantly differs from law making power of Congress and the President. Any congressman may introduce a bill, but the court cannot.


As it has been mentioned earlier in this paper, there is some controversy in judicial power to change or abolish laws enacted by elected legislators. Obviously such power should be counterbalanced. The author of this paper argues that the current system of check and balances established by the US Constitution is enough to counterbalance the power of judicial review. Legislators and the President are under control of the judiciary since they are bound by judicial decisions. The judiciary, in its turn, is bound by laws enacted by Congress, orders issued by the President and regulations promulgated by governmental agencies. In other words, courts’ decisions are often based on laws created by elected legislators. Moreover, it is Congress that, according to the US Constitution establishes and ordains courts. Therefore, one may observe that the people may significantly influence courts through their elective representatives.


There is no doubt that judicial review is one the most important functions of the US judiciary. Such function helps establish the rule of law and abolish unconstitutional laws. Judicial review is possible only when certain requirements are met. The basic requirements are jurisdictional, reviewability, standing, ripeness, and exhaustion. It is true that, in some sense, judicial power to change the law can be seen as controversial. The situation when law is changed by judges instead of elected legislators may potentially raise some concerns. However, one should remember that people may influence courts through their elected representatives in legislative power. Elected legislators create and ordain courts and enact laws on which courts rely while taking decisions.


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