judicial review

judicial review
Name	Judicial review
Caption	The Roberts Court of the Supreme Court of the United States, a key institution for this process.
Classification	Constitutional law, Administrative law
Related actions	Declaratory judgment, Injunction, Writ of certiorari
Legislation	Marbury v. Madison, Administrative Procedure Act
Fields	Separation of powers, Rule of law

judicial review. It is a fundamental legal doctrine empowering courts to examine the actions of the legislative and executive branches of government. This process allows judges to invalidate laws, statutes, and governmental actions that are found to violate provisions of a higher legal authority, typically a written constitution. The practice serves as a critical mechanism for enforcing constitutional supremacy and protecting individual rights against potential government overreach.

Definition and purpose

The core function is to ensure that all branches of government operate within the boundaries set by a nation's foundational charter, such as the Constitution of the United States or the Basic Law for the Federal Republic of Germany. Its primary purpose is to uphold the rule of law by providing a check on the potential tyranny of the majority exercised through the Congress of the United States or the Parliament of the United Kingdom. Furthermore, it protects fundamental rights enshrined in documents like the Canadian Charter of Rights and Freedoms and serves as a guardian of federalist structures, as seen in disputes adjudicated by the Supreme Court of India. This power reinforces the principle of separation of powers by enabling the judiciary to serve as an arbiter in disputes between the President of the United States and the United States Senate.

Origins and history

While philosophical roots can be traced to thinkers like Edward Coke and William Blackstone, the modern doctrine is most famously associated with the 1803 case of Marbury v. Madison decided by the Supreme Court of the United States under Chief Justice John Marshall. Earlier precedents include the Case of Proclamations and debates during the Glorious Revolution. The concept developed differently across the Commonwealth of Nations, with the Constitutional Court of South Africa and the High Court of Australia establishing their own authoritative roles. In the 20th century, the establishment of entities like the Federal Constitutional Court of Germany and the European Court of Justice expanded its application beyond the traditional Anglo-American law sphere, influencing systems in places like Japan and Brazil.

Types and scope

The practice is generally categorized into two main forms: review of legislative acts for constitutionality and review of administrative actions for legality. Systems like that of the United States employ "diffuse" review, where many courts like the United States courts of appeals can perform this function. In contrast, the "centralized" model, used in countries like France and Italy, concentrates this power in specialized bodies such as the Constitutional Council of France. The scope can also be limited; for instance, the Parliament of the United Kingdom operates under the principle of parliamentary sovereignty, though the Supreme Court of the United Kingdom can review actions under the Human Rights Act 1998. International bodies like the International Court of Justice also engage in a form of review regarding the actions of states and organizations like the United Nations.

Process and standards

The process typically begins when a litigant with standing brings a case before a competent court, such as the Supreme Court of Canada. Courts often employ specific writs like certiorari or mandamus to compel action. The standards of review vary greatly; in reviewing agency decisions under the Administrative Procedure Act, U.S. courts may apply the "Chevron deference" standard. For constitutional questions, standards like "strict scrutiny" or "rational basis review" are used to evaluate laws affecting rights under the First Amendment to the United States Constitution. In the European Union, the Court of Justice of the European Union assesses compliance with treaties like the Treaty on European Union.

Impact and significance

Landmark exercises have profoundly shaped nations, such as the Brown v. Board of Education decision that dismantled racial segregation in the United States. It has been instrumental in defining the balance of power, as seen in rulings from the Constitutional Court of the Russian Federation and the Supreme Court of Israel. The doctrine underpins major economic and social policies, influencing decisions on the Affordable Care Act and matters of same-sex marriage in rulings like Obergefell v. Hodges. Globally, it has empowered institutions like the Inter-American Court of Human Rights to hold states accountable, affecting legal landscapes from Mexico to Argentina.

Criticisms and debates

A primary criticism, labeled "counter-majoritarian difficulty," argues that unelected judges, such as those on the Supreme Court of the United States, can overturn the will of democratically elected bodies like the United States House of Representatives. Debates over judicial activism versus judicial restraint are perennial, often highlighted in contentious confirmations for the Supreme Court of the United States. Scholars like Alexander Bickel and Robert Bork have engaged in these debates. Concerns also arise about politicization, as seen in discussions surrounding the Federalist Society and appointments to the Supreme Court of the United Kingdom. In systems like Poland and Hungary, conflicts over this power have led to clashes between national courts and the European Court of Human Rights.

Category:Constitutional law Category:Administrative law Category:Judicial review