What Is Judicial Review?

(Last Updated On: September 27, 2020)

What Is Judicial Review?

You’ve probably learned some amount about the Supreme Court of the United States, but a lot of contemporary American curriculum focuses on the other two branches of government. The Supreme Court faces a heavy loss with the recent passing of Justice Ruth Bader Ginsburg. That hasn’t stopped the Senate from trying to push forward a new Justice forward on the same day–perhaps despite saying otherwise 4 years ago in 2016. As America mourns the loss of a great figure, the pace of politics demands increasing literacy. So wherever you may stand (or sit, we’re still all inside) it’s probably pretty important to look at what the Supreme Court can do. Chiefly, what is judicial review?

What Does the Court Even Do?

For starters, the United States Supreme Court is the highest you could possibly go in America’s judicial system. Largely speaking, the Supreme Court hears cases that lower courts (state courts etc.) either can’t or won’t. Typically this happens because a case is appealed– working its way up the federal judiciary. Supreme Court rulings then work their way down and set legal precedent for the rest of America. 

Because American law didn’t start by writing everything at once, legal precedent allows things to build off each other. That’s why criminal sentencing (outside of stuff like murder) is largely based on what sentences people have received for similar crimes in the past. 

Something that overturns this precedent is considered a landmark case (in the UK they’re referred to as leading cases). Largely speaking, landmark cases may also introduce new legal principles–or substantially change the interpretation of contemporary ones. 

Most of these cases are heard by the Supreme Court in the US–though some decisions are made by the United States Court of Appeals should the Supreme Court choose not to hear the case. The Court of Appeals may also make landmark decisions should the Supreme Court hold to the decision of the lower courts. 

That’s not to say only the Supreme Court makes these types of decisions. State supreme courts do the same thing for their own state laws. The difference of course is scale. Rarely do state court decisions prove so large other states adopt them en masse.

What Can the Supreme Court Not Rule Over?

For starters, the Supreme Court can’t just barge in and decide it wants to take a case. Those are brought to the Supreme Court via petition–of which there can be several thousand per year. So it’s not like the Supreme Court is starving to barge into other courts to hold hearings when you realize they only have about 100 of those per year. 

Of the cases they hear, the Supreme Court chooses about 90% of them via writ of certiorari. Which is a fancy legal way of saying someone disagreed with the decision of a lower court and wanted the Supreme Court to hear it. There’s a whole process but you’re probably more interested in the ends rather than the means.

What might be a little more interesting is the “non-political judiciary.” Which means what it sounds like–the Supreme Court does not hear strictly political cases (though it may make decisions with political overtones). Which, at face value, might sound a little counterintuitive. 

A large part of that is due to judicial independence. It basically means that the courts (all of them) are theoretically independent from other branches of government. Chiefly, the judicial system is (theoretically) not subject to influence from private or partisan interests. 

Lifetime judicial appointments are an intended too to maintain this. It’s kind of an unspoken rule that the end goal of any politician is to be re-elected by their constituents. That’s why politicians typically make decisions that their voters would like–anything else is political suicide. Because Justices are appointed for life, they are theoretically not bound by this rule–and are free to make decisions unpopular with their constituents (but perhaps popular with the rest of the nation) without fear of losing their seat. 

Of course contemporary American politics have strayed away from a non-political judiciary, but that’s the theory behind it.

The Judicial Review

That was a lot of foundation to bring us to the power of judicial review. If you’ve been through some amount of secondary schooling in America, you’re probably familiar with the idea of “checks and balances.” Ergo each branch of government has the power to keep the others from overreaching. 

For the Supreme Court, that’s judicial review. It’s basically the power to determine whether or not something out of the legislative or executive branches is in contradiction with pre-existing law or the United States Constitution. That’s right, after Marbury v. Madison in 1803, the Supreme Court essentially asserted the power to declare laws unconstitutional.

Operating under the presumption that Supreme Court Justices are foolproof arbiters of what is and isn’t just, this means an unjust rulings from lower courts or unjust laws are to be struck down. Because judicial review is often in relation to the US Constitution, you’d also have to assume that document is the most perfect one out there.

Of course it’s naïve to operate under that assumption; the ones executing the power of judicial review are human just like us. But you get the gist.

Judicial review is typically only exercised in relation to other states. It comparatively doesn’t strike down federal law very often. 

Given how powerful judicial review is, you’d probably really want the Supreme Court to be free of private or partisan interests. Which it unfortunately isn’t. 

Judicial review’s powers aren’t outlined in the Constitution (like how the roles of the President and Congress are). It’s largely implied from other provisions. So its power can flex quite a lot depending on how the current sitting Justices interpret the US Constitution. Just in case you were wondering why the perception of power we have of the Courts can also flex quite a bit between administrations.

Hopefully you know whether or not someone’s a Supreme Court Justice or Harry Potter character. Check if you’re unsure here.

About the Author:

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Kyler is a content writer at Sporcle living in Seattle, and is currently studying at the University of Washington School of Law. He's been writing for Sporcle since 2019; sometimes the blog is an excellent platform to answer random personal questions he has about the world. Most of his free time is spent drinking black coffee like water.