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What is the meaning of Judicial Review?

Judicial review is the power of the judiciary to examine the constitutionality of legislative enactments and executive orders of both the Central and State governments. 

On examination, if they are found to be violative of the constitution (ultra vires) , they can be declared as illegal, unconstitutional and invalid (null and void) by the judiciary. Therefore, they cannot be enforced by the Government. 

Further Reading :

• Judicial Review
• Supreme Court of India
• High Courts of India 

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What is meant by Judicial Review?

Judicial review refers to the power of the judiciary to interpret the constitution and to declare any such law or order of the legislature and executive void if it finds them in conflict with the constitution of india. it acts as an important tool to ensure that all legislative, executive, administrative actions conform to the provisions of the nation’s constitution. the supreme court has been vested with the power of judicial review by various provisions of the constitution..

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Judicial review

This article is written by Abhinav Rana, from the University School of Law and Legal Studies, GGSIPU Dwarka and Nishka Kamath , a student of Nalanda Law College, University of Mumbai. This article explains the concept of judicial review along with its importance, scope, features, and functions, inter alia. It also discusses the grounds of judicial review in great detail. Moreover, the limitations of judicial review are discussed in great detail. 

Table of Contents

Introduction

Law plays an important role in today’s society. People have given up on their rights and entered into a contract with the government in return of which the government gave them protection against the wrong. This is known as the Social Contract Theory given by Hobbes. In this phase of Rule of Law, the law without justice can become arbitrary and can be misused. So to keep check and balance on the power of each organ of government we have further adopted Judicial Review. Judicial review is the process by which the court declares any law which goes against the constitution as void. We have adopted this feature from the United States Constitution. But it took a lot of years to fix this feature in our constitution. Judiciary has played an important role in this regard. Judicial Review can be of Constitutional Amendments, Legislative actions and of Laws made by the legislature. In this research paper, we will discuss the history, growth, features and types of Judicial Review with Indian case laws.

In India, there are three organs of government namely Legislature, Executive and Judiciary. The Legislature performs the function of making the laws, the Executive executes/implements the laws and the Judiciary keeps a check on both the organs specified above and makes sure the laws being made and implemented are not ultra vires to the Constitution of India. To make these organs work in their specified limits our constitution has the feature of Separation of Power. Article 50 of the Indian Constitution talks about the separation of power.

This concept is not followed in the strict sense as compared to the USA from where it has been adopted. The concept of Judicial Review has been adopted from the American Constitution. The Judiciary has the power to set aside any law passed by the parliament if it intervenes in the Constitution of India. Any law passed by the legislature that contravenes the Constitution can be made null and void by the Judiciary. Under Article 13(2) of the Constitution of India, any law made by the parliament that abridges the right conferred to the people under Part 3 of the constitution is void-ab-initio.  The power to interpret the Constitution of India to its full extent lies within the Judiciary. It is the protector of the Constitution of India. Power of Judicial Review is vested in many articles such as 13, 32,131-136, 143, 226, 145, 246, 251, 254 and 372. 

Article 372(1) talks about Judicial review of the pre-constitutional laws that were in force before the commencement of the Constitution of India. 

Article 13(2) further talks about any law made by the parliament after the commencement of the constitution shall be declared null and void by the Court. 

The Supreme Court and High Court are said to be the guarantors of Fundamental given by the constitution. If any person’s Fundamental right is violated he/she can approach the court under Article 32 or Article 226 of the constitution. 

Article 251 and 254 states that if there is any inconsistency between the union and state law, the law of union shall prevail and the state law shall be deemed void. 

Why would you ask? 

This is because of the principle of separation of powers. Separation of powers, also referred to as the system of checks and balances, is the doctrine of Constitutional law under which the three branches of the government, i.e., the executive, the legislative, and the judiciary, are kept separate. Thus, each branch has distinct powers and is usually not allowed to exercise the powers of the other branch. So, in a situation wherein the judiciary cannot substitute for the role of the executive or the legislature, it must not step into the shoes of the executive or legislature. 

From the L. Chandra Kumar vs. Union of India (1997) case to the Indira Nehru Gandhi vs. Shri Raj Narain & Anr (1975) case, from the Golakhnath vs. State of Punjab (1967) to the Minerva Mills Ltd. vs. Union of India (1980) , the doctrine of judicial review has been an integral part of the Indian legal system, especially in cases where the law-making authorities have acted in contradiction to the supreme. 

Judicial Review is in the news because of the order passed by the Supreme Court permitting a floor test in the Maharashtra Assembly. An issue was raised in this case as to “Whether the court can have the authority to review the decision of the Governor?”, to which senior advocate Dr. A.M. Singhvi contended that the court has the authority to exercise its power of judicial review to determine the Governor’s satisfaction while commanding a floor test. 

Another instance of judicial review is the recent verdict passed by the Supreme Court of the United States in the case of  Dobbs v. Jackson Women’s Health, which overturned Roe v. Wade (1973) on abortion laws.

History of Judicial Review

The word judicial review at a very early instance came before the court in Dr Bonham Case. In this case, Dr Bohnam was forbidden to practice in London by the Royal college of physicians as he was not having a license for the same. This case is also known for the violation of Principals of Natural Justice as in this case there is Pecuniary bias. As Dr Bonham is fined for his without a license, practicing the fine would be distributed between the king and the college itself.  

Afterwards, the word judicial review was summarized in Marbury V. Madison, 1803. In this case, the term period of President Adam belonging to the federalist party came to an end and Jefferson the anti-federalist came to power. On his last day, Adam appointed the members of the federal party as judges. But when Jefferson came to power he was against this. So he stopped Madison the secretary of state, from sending the appointment letter to the judges. Marbury, one of the judges, approached the Supreme Court and filed a writ of mandamus. Court refused to entertain the plea and first opposed the order of the legislature i.e Congress and thus the US Supreme court developed the doctrine of judicial review.   

Why the judicial review is important 

Judicial review is significant for the reasons mentioned as under: 

• It averts the tyranny of executives.  
• It safeguards the fundamental rights of the citizens. 
• It is crucial for shielding the independence of the judiciary.
• It is an absolute necessity for maintaining the supremacy of the Constitution. 
• It also helps in intercepting the misuse of power by the legislature and the executive .
• It aids in maintaining the equilibrium between the centre and the state, thus keeping a federal balance. 

Scope of judicial review 

Judicial review is not absolute, as some situations need to be met in order to demur against any law in the Supreme Court or the high courts, i.e., a law can be questioned only if: 

• The law violates the fundamental rights that are enshrined by the Constitution.  
• The law infringes upon the provisions listed in the Constitution. 
• The enacted law goes beyond the capacity or power of the official(s) in charge that enacted it. 

Features of Judicial Review

Power of judicial review can be exercised by both the supreme court and high courts: .

Under Article 226 a person can approach the high court for violation of any fundamental right or for any legal right. Also, under Article 32 a person can move to the Supreme Court for any violation of a fundamental right or for a question of law. But the final power to interpret the constitution lies with the apex court i.e Supreme Court. The Supreme Court is the highest court of the land and its decisions are binding all over the country.

Judicial Review of both state and central laws: 

Laws made by centre and state both are the subject to the judicial review. All the laws, order, bye-laws, ordinance and constitutional amendments and all other notifications are subject to judicial review which are included in Article 13(3) of the constitution of India. 

Judicial review is not automatically applied:

The concept of judicial review needs to be attracted and applied. The Supreme Court cannot itself apply for judicial review. It can be used only when a question of law or rule is challenged before the Hon’ble court. 

Judicial review is not suo motu

The Supreme Court or the high court for that matter do not use their authority to conduct a judicial review by a suo motu  action. However, such power is utilised when there is a question of law that comes before the courts or during the court proceedings when any such incident occurs or such conditions arise as to where the law is in question. 

Principle of Procedure established by law:

Judicial Review is governed by the principle of “Procedure established by law” as given in Article 21 of the Indian Constitution. The law has to pass the test of constitutionality if it qualifies it can be made a law. On the contrary, the court can declare it null and void.   

Functions of judicial review

Judicial review has two vital functions, namely: 

• Of making the actions of the government legitimate, and
• To secure the Constitution from any undue encroachment by the government. 

Judicial review can be done by whom? 

Judicial review is interpreted as the doctrine under which executive and legislative actions are examined by the judiciary. In India, even though we have the principle of separation of powers for the different organs of the government, i.e., the executive, the legislative, and the judiciary, the judiciary is entrusted with the authority to review the actions of the other two organs. 

In India, judicial review can be done by the High Courts as well as the Supreme Court.  The powers of judicial review are delegated to the courts under Article 226 and Article 227 of the Constitution of India, as far as the High Courts are concerned, and in Article 32 and Article 136 with regard to the Supreme Court.  

Judicial review of ordinances

Article 123 and 213 of the Indian Constitution gives the president and the governor of the state to pass an ordinance. An act of ordinance by the president or governor is within the same restrictions as which are placed on parliament which makes any law. This power is used by the president or governor in exceptional conditions only. The power should not be used mala fide. In a report published by the House of People, it was submitted that till October 2016 president has made 701 ordinances.  Through the ordinance, it was held that Rs.500 and Rs. 1000 notes will cease to be liabilities from 31st December 2016. 

In the case of AK Roy v. Union of India (1982) 1 SCC 271 it was held that the president’s power to pass an ordinance is not a subject of Judicial Review. 

In the case of T. Venkata Reddy v. State of Andhra Pradesh (1985) 3 SCC 198 it was held that just like legislative power cannot be questioned, the ordinance made on the ground of motive or non-application of mind, or necessity cannot be questioned. 

Judicial review of Money Bill

Article 110(3) of the constitution of India states that whenever a question arises for whether a bill is a money bill or not the decision of the speaker of Lok Sabha shall be final. 

In the present scenario, a “money bill” is beyond the power of Judicial Review. 

Article 212 of the constitution of India provides that the Courts cannot inquire proceedings of the Legislature on the ground of any alleged irregularity of procedure.

Article 255 of the constitution of India provides that the recommendation and previous sanction are matters of procedure only. 

In the case of Mangalore Ganesh Beedi Works v. State of Mysore AIR 1963 SC 589 , it was held that the appellant was liable to sales tax under coinage act which was changed by coinage amendment act, 1955. So the contention was that as it enhanced the tax the bill should be passed as a money bill and as it was not passed as a money bill the tax should be held as invalid. 

The Supreme Court held that the coinage amendment act 1955 substituted new coinage in place of old coinage and thus it was no tax. 

By the way of obiter dicta, it was observed as if it would be a tax serving bill then also it was out of the proceedings of judicial review. 

Grounds for Judicial Review

Constitutional amendment.

Judicial Review in this phase is done for all the constitutional amendments done by the authority. All those amendments which are in violation of Fundamental Rights are declared void and it is held to be unconstitutional. All the judicial review for the constitutional amendments can be traced in history. We have already seen in the above-mentioned case laws that the constitutional amendments were challenged and all those against the constitution are declared unconstitutional and held void. We can trace the marks of judicial review of the constitutional amendment in these cases: Shankari Prasad V. Union of India; Sajjan Singh V. State of Rajasthan; I.C. Golaknath V. State of Punjab; Kesavananda Bharti V. State of Kerala; I.R Coelho V. State of Tamil Nadu. All these cases are discussed in detail above in this paper.  

Illegality 

Lack of jurisdiction .

If an administrative authority has no right to perform a  particular act, any purported action of such a right will be, as a  matter of course, void and non-existent in the eyes of the law. Say for instance, if a minister has no power to revoke a licence, an order of revocation passed by him will be ultra vires and lack jurisdiction, as held in the case of R. vs. Minister of Transport (1934).  

Further, in the case of Rafiq Khan vs. State of U.P. (1954) , it was held that the Panchayat Raj Act, 1947 did not give the Sub-Divisional Magistrate the authority to modify the order of conviction and sentence passed by a Panchayat Adalat. The order passed by the Panchayat Adalat could either be quashed altogether or have the jurisdiction of the Panchayat Adalat revoked. The Magistrate upheld the conviction of the accused in respect of one of the offences only and quashed the conviction in respect of the other offences. So, the Allahabad High Court subdued the conviction relating to the other offences via issuing a writ of certiorari. 

A court may review an administrative action on the grounds that the authorities exercised jurisdiction that they did not have originally. This review may be done on the following grounds (inter alia): 

• That the rules under which the administrative authority is composed and is exercising jurisdiction, are in itself unconstitutional.  
• That the authority is not properly made in accordance with the rules and regulations or the laws. 
• That the authority has mistakenly made a decision upon a jurisdictional fact, hence, might have assumed jurisdiction not belonging to the authority. 
• That there were some crucial preliminary terms that were conditions precedent for the exercise of the jurisdiction but were disregarded.  
• That the administration/officials were inept to assume jurisdiction in respect of the subject matter, areas and parties. 

Excess of jurisdiction

It is mandatory that each and every administrative authority must exercise its power within the purview it is entrusted with, i.e., it must not exceed the boundaries and govern everything by staying confined to the four corners of the law. In case the power is exceeded, such an action will be deemed to be ultra vires and therefore void. 

In one case [County Council vs. Attorney General (1902) AC 165] , a local authority had the power to operate tramways, but this authority began to operate a bus service, thus acting ultra vires and therefore void . Pertaining to the facts of the case, an injunction was applied for and duly granted by the Court.

Abuse of jurisdiction

This ground basically means that there should not be an act done in bad faith ( mala fide actions), but authority must always exercise its discretion for the reason it is allotted to them and must act in good faith ( bona fide actions). 

In the case of Pratap Singh vs. State of Punjab, AIR 1964, SC 72 , a civil surgeon applied for a leave preparatory to his retirement and was granted such a leave, which was withdrawn later. He was placed under suspension and a departmental inquiry was ordered against him, which led to his dismissal from the post of civil surgeon. Here, a petition was filed asserting that such an act was performed at the behest of the Chief Minister, who wanted to settle a score with him since the time he had denied engaging in any illegal activities with the Minister. The Hon’ble Supreme Court, after scrutinising the facts and situations, quashed the order as it was mala fide in nature. 

Abuse of jurisdiction may, inter alia, occur in some of the instances as under-

Malfeasance in office/improper purpose

Administrative power cannot be used for the purpose for which it is not allotted. In Attorney-General vs. Fulham Corporation , the administration was entitled under the law to set up warehouses for the non-commercial use of local occupants. The corporation then agreed to open a laundry on a commercial basis. The corporation was held to have acted ultra vires the law.  

A mistake apparent on the face of the record

A mistake is proclaimed to be obvious when one can establish such an inference just by analysing the record without having to rely upon any other information. 

In Syed Yakoob vs. K.S. Radhakrishnan (1963) , the Hon’ble Supreme Court stated that there was a seemingly obvious legal mistake on the face of the record where the outcome of the law recorded by an inferior tribunal is as follows:

• Is founded on a blatant misinterpretation of the appropriate statutory provisions,
• Is in ignorance of it,
• Is in disregard of it,
• Is particularly premised on rationales that are wrong in law. 

Consideration of extraneous material

In exercising power, the person in authority or the authorities must pay heed to all the appropriate circumstances and dismiss insignificant circumstances. 

In R vs. Somerset County Council, ex p Fewings (1955) , the local authority decided to put a ban on stag hunting on the property inhabited by the council and assigned it for recreational purposes. The Court of Appeal accepted that, in some situations, there could be a rightful ban on stag hunting.  In this case, animal welfare and social considerations were relevant to take into account. 

Mala fide management of power

When a decision taken by the decision-maker is taken dishonestly with a certain ulterior motive in his/her mind, such a person may be said to have acted in bad faith. 

In R vs. Derbyshire County Council, ex p Times Supplemets (1991) , the local education authorities were under a task to call the attention of qualified persons to fill the vacancies of a certain post(s).  The articles published in that newspaper (The Times) were read by a large number of potential applicants, but despite being aware of this fact, the Council decided to halt advertising such vacancies in the paper, and thus, the papers were sought for judicial review. The Derbyshire County Council reached a verdict that the educational council had taken such a decision not on the basis of educational grounds but motivated by a malicious desire for retaliation; and thus, the educational council has acted in bad faith, i.e., with mala fide intentions. 

Fettering discretion

An authority may act ultra vires , i.e., beyond its capacity in times when a certain power to, say, adopt a policy, is exercised without effectively giving it a  thorough thought about it, which means it does not actually exercise its discretion at all. 

The same was held in the case of H Lavender & Sons vs. Minister of Housing & Local Government (1970) , wherein the local planning authority denied permission to Lavender to take extra sand and gravel from a high-grade agricultural land. Aggrieved by the decision, an appeal was made to the Minister of Housing and Local Government, but the appeal was dismissed as the Minister of Housing and Local Government was convinced to do so by the Minister of Agriculture, stating that such land must be conserved for the purpose of agriculture. This decision was set aside by the Court as the Minister, even after having the capacity to object, reached a decision based solely on the opinions of another Minister. Here, the Minister of Housing and Local Government did not have an open mind on Lavender’s appeal, and thus, fettered his discretion. 

Failure to exercise jurisdiction 

If any administrative authority is entrusted with power by law (even though discretionary), the person(s)  in power or the authority must implement it in one way or the other. A failure to exercise discretion may arise, inter alia , in the following five circumstances, namely:  

• Unauthorised delegation,
• Self-imposed fretters on discretion,
• Acting under the dictates of a superior,
• Non-application of mind,
• Power coupled with duty.

Irrationality (Wednesbury test)

The principle of irrationality as a ground for judicial review was brought into existence by the Associated Provincial Picture House Ltd. vs. Wednesbury Corporation (1948) . 

A decision of the administrative authority shall be considered irrational in matters when-

• It does not have the authority of a law. 
• It is not based on evidence. 
• It is based on a consideration that is irrelevant and extraneous.  
• The decision of the authorities is so whimsical, twisted, arbitrary, absurd and unfair that no rational person can reach a conclusion which has been reached by the authorities. 
• It is so irrational that it may be done in bad faith or maliciously.  

Procedural impropriety

Procedural impropriety needs a ‘fair procedure’ to be followed in every administrative action. The fair procedure would include 

Rule against bias

It means no person should be a judge in their own cause ( nemo judex in causa sua ). 

Rule of fair hearing

The rule of fair hearing states that no person should be condemned unheard ( audi alteram partum ).  

Moreover, procedural impropriety also comprises the failure to observe regulations laid down in statutes along with the failure to observe the basic common rules of natural justice, as stated above. 

In the classic case of Ridge vs. Baldwin (1963) , there is a revelation of judicial insistence on the fairness of the procedure notwithstanding the kind of authority deciding a question. The Chief Constable of Brington, Mr. Ridge, was dismissed from his duty following charges of conspiracy to pose a hindrance in the path of justice. In spite of the fact that the allegations imposed upon Ridge were proven false, the judge made comments which were critical of Ridge’s conduct. Thereupon, Ridge was dismissed from the force. He was not even invited to attend the meeting wherein the conclusion to remove him from work was reached, even though he was given the chance to appear before the Committee which inferred the previous decision. Ridge then made an appeal to the Home Secretary, which was dismissed. Ridge then sought a declaration on the grounds that the rules of natural justice were violated and that the Home Secretary went beyond his powers, i.e., ultra vires, while dismissing the appeal. This case law is of significant importance as it pinpoints the linkage between the right of an individual to be heard and the right to know the charges brought against the individual. 

Proportionality

Proportionality means that the administrative authority must not be more drastic than it ought to be to seek the desired outcome. Proportionality is sometimes explained by the expression ‘taking a sledgehammer to crack a nut’. This doctrine endeavours to balance means with ends. Proportionality shares space with ‘reasonable restrictions’. 

In Chairman, All India Railway Board vs. Shyam Kumar and Ors. (2010) , the Apex Court had defined the proportionality test as the “ least injurious means ” or the “ minimal impairment test ” for protecting the fundamental rights of citizens and guaranteeing a fair equilibrium between the individual rights and interests of the public. 

While reviewing the action of an administration on the doctrine of proportionality, the court generally considers the following points: 

• Whether the relative merits of varied objectives or interests are properly evaluated and balanced in a just manner?
• Whether the actions under consideration were, in the situations, extremely restrictive or inflicted a needless burden? 

In Sardar Singh vs. Union of India (1991) , an Army Jawan who was serving in the Indian Army was granted leave. While proceeding to his hometown, he purchased 11 bottles of sealed rum and one bottle of brandy from the army canteen, even though he was authorised to carry only 4 bottles. In the Court Martial Proceedings initiated against him on those grounds, he was sentenced to undergo rigorous imprisonment for 3 months and was dismissed from his service. The Supreme Court withheld the award of punishment granted to the appellant. It further held that the action taken against the appellant was arbitrary and the penalty was severe. 

The doctrine of proportionality is an important principle as it authorizes the courts to check the possible abuse of discretionary power by the executive. In this doctrine, the court has to ascertain whether the action taken was seriously needed as well as whether it was within the purview of courses of action that could otherwise be interpreted. 

Types of judicial review

As famously classified by Justice Syed Shah Mohamed Quadri, there are three major categories of judicial review. They are as follows:

Reviews of legislative actions

This type of judicial review insinuates that the laws enacted by the legislature are in accordance with the laws laid out in the Constitution. This has been a topic of discussion in numerous Supreme Court cases, of which the following are the most noteworthy:

Shankari Prasad case

In Shankari Prasad vs. Union of India (1951) , a challenge was made to the First Amendment Act of 1951 on the grounds that the ‘Right to Property’ was restricted. The Supreme Court denied such an argument and stated that this could not be executed since the fundamental rights under Article 13 cannot be curtailed. 

Sajjan Singh case

In Sajjan Singh vs. State of Rajasthan (1965) , the existence of the Constitution under the 17th Amendment Act of 1964 was in question.  The Court eradicated the position in the Shankar Prasad case (discussed above) and held that the constitutional amendments made under Article 368 are not within the ambit of judicial review by the courts. 

Golakh Nath case

In I. C. Golaknath & Ors vs. State Of Punjab & Anrs. (1967) , there was a challenge made to three constitutional amendments, namely- the first (1951), fourth (1955) and seventeenth (1964). The Hon’ble Supreme Court asserted that Parliament has no authority under Article 368 to change the Constitution or to take away or restrict fundamental rights.  

Keshavananda Bharati case

In Keshavananda Bharti vs. State of Kerala (1973) , a challenge was made to the 24th (1971) and 25th (1971) Constitutional Amendments. A 13-bench judge was formed to attend the case, and with a 7 : 6 ratio, the Court deduced that:

• Article 368 of the Constitution provides the President with the power to bring about changes in the Constitution.
• Ordinary laws and constitutional amendments are not the same thing. 
• The core structure of the Constitution cannot be toppled with or amended by the Parliament. 

Indira Gandhi case

In Indira Nehru Gandhi vs. Shri Raj Narain & Anr (1975) , the then Prime Minister of India- Indira Gandhi was held guilty of electoral malpractices by the Supreme Court. 

Minerva Mills case  

In Minerva Mills Ltd. vs. Union of India (1980) , clauses (4) and (5) of Article 368, which were inserted by the 42nd Amendment (1976), were struck down by the Apex Court on the grounds that these clauses destroyed the basic structure of the Constitution. 

Review of administrative actions

This is yet another mode to achieve constitutional discipline over the administrative agencies while exercising their authority. A point must be noted that the judicial review of administrative actions of the Union of India as well as the state governments and their officials comes under the ambit of the meaning of state. 

Review of judicial decisions

This type of review is implemented to rectify or revamp amendments in previous findings or pronouncements by the judiciary itself. This sort of review was evident in the following cases, inter alia :

Golaknath case and Minerva Mills case 

These cases are discussed in detail above.

Bank Nationalisation case 

In Rustom Cavasjee Cooper vs. Union of India (1970) , popularly known as the Bank Nationalisation Case, the Supreme Court ruled that the Constitution assures the right to compensation, i.e., to an identical sum of money for property that was acquired by compulsion.   

Allied principles of judicial review

Principle of comity.

As per the principle of comity, all the state authorities should support the functions of each other that are important to enable authorities to perform their duties in a responsible way as per the rules and values of the Constitution. 

Principle of subsidiarity

By virtue of the principle of subsidiarity, public functions and powers should be applied at a level where they can be undertaken properly and in a responsible way. For instance, political questions can be better determined by the political authorities, policy matters can be better established by the legislative branch, whereas judicial matters can be regulated in a finer way by the judicial branch. 

Principle of contextuality

In the principle of contextuality, the law needs to take into consideration the context in which it is to be applied. Such action is performed for verifying that the role of law attains its duty as an indicator of social engineering in society. 

Principle of proportionality

On account of this principle, the courts exert their power of judicial review to determine if there is a harmony between the limitation on the right and the lawful end sought to be accomplished. As a part of this principle, there are three measures applied by the court, they are- 

Examining the means

The courts scrutinise the means adopted by the administrative authority. Thus, it inspects whether the ways adopted by the administrative authorities are within the purview of their power, the least onerous, and reasonably connected to the end. 

Examining the end

Following the above procedure, the court then delves into the ends, in terms of whether they are legalised, and within the capacity of the officials. 

Examining the balance between means and end  

Finally, the courts consider whether there is an equilibrium between the means and the end.   

Constitutional provisions for judicial review 

Procedure for judicial review in india .

In India, judicial review is headed by the principle of ‘Procedure established by law’ as stated under Article 21 of the Constitution of India. If the law passes the test of constitutionality, it can be said to be legislation. Conversely, the court has the power to declare the law null and void.   

Limitations of judicial review

There are certain limitations on the exercise of power when it comes to judicial review by the high courts and the Apex Court. In fact, when the judiciary oversteps its boundary and intrudes into matters that are authorised by the executive, it is termed judicial activism; whereas, when power is exploited further, it can lead to judicial overreach. Below are some of the limitations of judicial review:

General limitations 

Restricts the functioning of the government.

The scope of judicial review is limited, both in terms of availability and function. Here, the role of the court is to perform a review on the method through which an outcome was deduced so as to determine whether such a finding is defective and must be rescinded, instead of re-making the ruling in question or investigating the merits of the decision deduced. In short, it is only allowable to the degree of determining whether the method of reaching the inference was properly adhered to or not. It is not a decision in itself. 

Violation of limits set by the Constitution 

When it overrides any previously established law, it violates the limits of power put forth by the Constitution. Here, the legislative powers that are exercised by the Constitution are said to be erred. 

Concept of separation of power not observed

The concept of separation of functions is followed rather than that of separation of power. Additionally, the concept of separation of powers is not strictly adhered to. Although, a system of checks and balances has been introduced, thus entrusting the judiciary with the power to overturn any unconstitutional laws passed by the legislature. 

Sets a precedent 

The judicial opinions of a judge once taken in a particular case would serve as the basis for deciding another case, thus acting as a precedent. 

Selfish motives and influences 

Judicial review can prove to be detrimental to the local public as there are chances of the judgment being influenced by personal or selfish motives. This can lead to causing damage to the public at large.

Frequent interference by the court has a negative effect on the local public

Repeated court interventions can undermine the confidence of people in the integrity, quality, and efficiency of the government.

Lack of the capability to overrule administrative decisions

The court lacks the ability to repudiate the decisions taken by the administrative authorities. If a review of an administrative ruling is authorized, the decision of the court would be substituted, thus regarded to be a shortcoming due to inadequate knowledge. 

Judicial activism and judicial self-restraint

There is quite a discourse on whether there should be a line drawn between judicial activism and judicial self-restraint. 

Doctrine of Strict Necessity

The doctrine of strict necessity states that the court must rule on constitutional matters only if strict necessity requires it to do so.  Thus, constitutional questions will not be determined in a wider manner than required. 

Constitutional limits and limitations on judicial review 

The Hon’ble Supreme Court enjoys a privileged position that empowers it with the authority to review the legislative enactments legislated by Parliament and the state legislature. This power empowers the court with a powerful means for judicial review. There are several provisions in the Constitution of India (as discussed above) that provide for judicial review. The court has the duty to determine the unconstitutionality (if any) of the law enacted by the legislature and to rightly comprehend the provisions and objectives of the Constitution. 

In L. Chandra Kumar vs. Union Of India And Others (1997) , a question was raised as to ‘Whether the exclusion of the jurisdiction of the high court through Article 323 A  (2)(d) and 323 (b) was in opposition to the doctrine of judicial review, which basically was a primary feature of the Indian Constitution?’ The Court, while arriving at a decision, took several references like the Administrative Tribunals Act, along with the Sampat Kumar Judgement and the debates of the Constitutional Assembly. The Court, after carefully scrutinizing each and every event, reckoned that judicial review is indeed a basic feature of the Constitution of India. Moreover, the Court also considered the opinions of Dr. B. R. Ambedkar, who was the Chairman of the Drafting Committee of the Constitution, on Article 25 (present Article 32),  where he asserted that this Article is the very soul of the Indian Constitution. Further, the seven-judge Constitutional Bench also stated that “ the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. ”

Implied limitations on the exercise of the power of judicial review

Locus standi.

Considering the principle of ‘ locus standi ’, a petition under Article 32 of the Constitution can only be filed by the individual(s) whose fundamental or legal rights have been violated, however, relaxation has been given by the courts via the formation of the concept of Public Interest Litigation (PIL). Thus, if a decision which is contemplated to be patently bad is challenged, the courts ought not to protest in evaluating the act on the grounds of locus standi . 

Res Judicata

As per the principle of res judicata , there should be finality to binding verdicts of the court of competent jurisdiction and no party should be irked with the same litigation a second time. Thus, if a petition has been filed in a court that gets dismissed, the same petition cannot be filed in the same court on the exact foundation. 

Unreasonable delay

The remedies granted under Articles 32 and 226 of the Constitution must be sought within a reasonable time unless the reason for the delay is persuasive and acceptable. Due to this limitation, the court will decline to exercise its jurisdiction in matters of parties who have come to seek justice after a reasonable delay and are guilty of laches. 

Regardless, a point must be noted that there is no fixed period for laches, thus, every case will be decided based on the facts and contentions of the party(ies) to the case. 

Exhaustion of alternative remedies 

This limitation is not strictly imposed, however, as stated in the case of Y. Theclamma vs. UOI (1987) , the Supreme Court dictates that all the possible remedies must be sought by the petitioners before resorting to Article 32. The reason behind such a limitation is that the writ jurisdiction is not meant to dodge statutory procedures but only be used as an extraordinary remedy in situations where all other remedies are ill-suited. 

Exclusion of judicial review

Meaning of exclusion of judicial review .

Exclusion of judicial review refers to those circumstances wherein the powers of the high courts and the Supreme Court to exercise writs are excluded. It can be said to be the restrictions/limitations imposed on the power of the courts to review the actions of a public body (including the executive and the legislature). 

How is the exclusion of judicial review carried out?  

The exclusion of judicial review is carried out by Article 74(2) of the Constitution of India, and then there is the ouster clause. The ouster clause has provisions that do not provide for appeals or revision. It makes the judgement or act of the authority to be final and binding. This clause also avers that once an order is passed, it may not be called upon for questioning in any court. Thus, it may exclude the jurisdiction of the court entirely.

Indian scenario on the exclusion of judicial review 

The position of India on matters of judicial exclusion is quite similar to that of the United States. There is a charter of fundamental rights guaranteed under the Constitution in written format, and such rights can be reduced by the theory of administrative finality. 

In India, all three organs of the state, i.e., the legislature, the executive, and the judiciary, obtain power from the written Constitution, and the organs must act within the limitations of such powers. 

Constitution of India (COI) and the exclusion of judicial review  

The judiciary has been allotted the task of ascertaining what powers are conferred on which branch of the government, thus being the interpreter of the Constitution. It is also presented with the power of judicial review under Articles 32 and 226, which is not only an important part of the Constitution but also its basic structure, as held in the case of SP Sampath Kumar vs. UOI (1987) by Justice Bhagwati, relying on the Minerva Mills case. 

A note must be taken that despite the written Constitution, the fundamental rights ( Articles 12 to 35 ) and the constitutional remedies (Articles 32, 226, 227, and 136), the legislature still has the propensity to exclude judicial review in certain fields, namely:

• Express or implied exclusion,
• Total or partial exclusion, 
• Conditional or qualified exclusion, or
• Unconditional or unqualified exclusion. 

Provisions of the Constitution excluding judicial review 

Article 53 .

Under Article 53 of the Constitution, the executive power of the Union is vested in the President. 

Under Article 72 of the Constitution, the President shall have the power to grant pardons or suspend punishments and such a power cannot be truncated by any court. 

Article 74 (1) and (2)

Under Articles 74(1) and (2) , there shall be a Council of Ministers at the head to help and educate the President, and the President shall work in consonance with such advice.  However, the question of whether any and if so what, advice was given to the President by the Ministers shall not be investigated by any court.  

Under Article 77 , the conduct of any business of the government shall not be a subject of suspicion. 

Article 77 and 78

Under Articles 77 and 78 , there is a prohibition of judicial review to give ample freedom for the exercise of executive power. 

Under Article 80 , the composition of the Council of States is exclusively left to the discretion of the President.  

Article 103

Under Article 103 , on the grounds of Article 102 , the decision on questions as to disqualifications of members shall be vested in the President and such rulings shall be absolute.  

Article 161 

Under Article 161, the power of the Governor to grant pardons, suspend punishments, etc., cannot be truncated by any court.  

Article 361

Under Article 361 , the President, Governors, and Rajpramukhs are excused from legal proceedings in a court of law with respect to the acts performed during the term of office.  

Further, the exercise of the power of the President or the Governor cannot be subjected to judicial review based on merits, as held in the case of Swaran Singh vs. State of UP (1998).

Moreover, the courts cannot issue any guidelines in matters of such interests as held in the case of Maru Ram vs. UOI (1981).

Besides, the court cannot ask the President or the Governor to list reasons for backing the order passed by them as stated in the case of State of Punjab vs. Joginder Singh (1990) .  

Exceptions for the exclusion of judicial review

The power of judicial review will be exercised in cases where the exercise of power is-

• Discriminatory,
• Mala fide, or
• When material facts were not brought to the notice of the President or the Governor. 

In such cases, the action can be set aside and instructions can be issued to pass a new ruling in compliance with the law.  

Ouster clauses 

An ouster clause can be defined as an effort of the legislature to preclude the actions or rulings of any public authority from being questioned before the courts. Such clauses are formed in order to signal to the decision-makers that they may perform without any fear of intrusion from the court. There are two main types of ouster clauses, which are discussed below. 

Types of ouster clause 

Partial ouster or time limit clause.

Unlike the total ouster clause, which eliminates judicial review completely, a partial ouster or time limit clause provides a certain time period, after which no remedy shall be attained. These types of clauses are generally quite efficacious unless the public authority has acted with mala fide intent.  

The partial exclusion of the judiciary was given consent in the case of Sampath Kumar vs. UOI. In this case, it was held that the decision of the administrative tribunal can be excluded from judicial review by the high court if the tribunal constitutes a ‘judicial element’. In order to completely preclude judicial review, an appeal procedure has to be established, but this is not very much appreciated in the Indian continent as it is believed that judicial review cannot be barred completely even if there were other remedies in cases where the tribunals used powers that were ultra vires.  

Total ouster or finality clause 

Total or finality clause means the decision by any agency ‘shall be final’. In simple words, it means the decision of the judge or tribunal is final and cannot be challenged by any court. 

In the case of Shri Kihota Hollohon vs. Mr. Zachilhu and Others (1992) , a reference was made to a statement by Professor Wade that said “ Finality is a good thing, but justice is better ”. He also made an observation that many statutes render that some decisions are “ final ” and that these provisions act as a bar to any appeal, but such provisions do not hamper the operation of judicial review as the courts forbid them to act in such a way. Thus, the normal effect of the finality clause is to not give rise to any further appeals.

Further, in the case of Union of India and Anr. vs. Tulsiram Patel and Ors. (1985) , the Hon’ble Supreme Court was dealing with Article 311(3) of the Constitution, which attaches finality to the order of the disciplinary authority regarding whether it was reasonably practicable to hold an inquiry or not. The Court made an observation that the ‘finality’ clause did not preclude jurisdiction, be that as it may, but it suggested that the jurisdiction is bounded by certain grades. 

The legal issue associated with the ouster clause 

The main legal issue with the ouster clause is ‘whether it is truly feasible to eliminate the jurisdiction of the courts by the use of carefully drafted laws?’

A professor in Singapore by the name of Thio Li-ann has observed that “ courts generally loathe ouster clauses as these contradict the rule of law whereby judges finally declare the legal limits of power and also as the individual’s ultimate recourse to the law is denied. Hence, courts try to construe these strictly to minimise their impact. In so doing, they may be going against the grain of parliamentary will .”

A note must be taken that the ouster clause does not effectively debar judicial review of errors of law that have an impact on the jurisdiction of the authority in the process of making decisions. In the case of Regina vs. Medical Appeal Tribunal ex parte Gilmore; Re Gilmore’s Application: CA 25 Feb (1957) , Lord Alfred Denning stated that he finds it very “ well settled that the remedy by certiorari is never to be taken away by any statute except by the most clear and explicit words. The word ‘final’ is not enough.” And in Anisminic Ltd. vs. Foreign Compensation Commission (1968) , it was stated that this type of clause is for making the “ decision final on the facts, but not final on the law. Notwithstanding that the decision is by a statute made ‘final,’ certiorari can still issue for excess of jurisdiction or for error of law on the face of the record. ”

Thus, it can be deduced from the above cases that judicial review can not be eliminated by the courts in cases where there was an excess of jurisdiction or if there was an error of law in attaining an inference/judgement. 

Judicial self-restraint 

What is judicial restraint or judicial self-restraint .

Judicial restraint, also known as judicial self-restraint, is a theory of judicial interpretation that encourages judges to limit the exercise of the power vested in them. In simple words, the courts must render the law and not intrude in the policy-making process. The judges, too, should make an attempt to decide cases on the grounds of-

• The primary intent of the writers of the Constitution.
• The precedents, i.e., the past verdicts in previous cases.
• Moreover, the policy-making process must be left to others and should not be intervened in by the court. 

In judicial restraint, the courts ‘restrain’ themselves from implementing new policies at their discretion. 

The necessity of judicial restraint 

Judicial restraint is necessary due to the following reasons:

• Judicial restraint aids in maintaining a balance between the three branches of the government, that is-
• The executive,
• The judiciary, and 
• The legislature. 
• The laws established by the government in the legislature are sustained.
• It shows earnest respect for the separation of problems from the government.
• It allows the legislature and the executive to comply with their obligations and job responsibilities thereof without reaching into their area of work. 
• By leaving the process of policy-making to the policymakers, judicial restraint marks respect for the democratic form of government. 

Landmark judgments on judicial restraint

State of rajasthan vs. union of india (1977).

In this case , the Court rejected a petition on the basis that it had the involvement of a ‘political question’. Being involved would mean moving into the political domain, and thus, the Court would not go into the matter.

S. R. Bommai vs. Union of India (1994)

In this famous case , the judges opined that in specific circumstances, political elements are predominant and there is no possibility of judicial review. The exercise of power, as stated under Article 356 of the Constitution, was a political issue and therefore there was no need for judicial intervention. The Court asserted that it is challenging to develop norms that are judicially manageable for analysing political decisions, and if the courts intervene, then they would be entering into the political domain and thus impugning political wisdom, which they must stay away from at all costs. 

Almitra H. Patel vs. Union of India (2000)

In this case , the Court, on the issue of whether directions should be issued to the Municipal Corporation pertaining to making Delhi neat and clean, expressed that it was not for the Supreme Court to instruct them as to how to execute their most basic tasks. Thus, the Court can only instruct the municipal authorities to perform functions prescribed under law. 

Current scenario of judicial review in India

Not long ago, the Supreme Court of India denied agreeing to the Central Vista project as a unique case needing ‘heightened’ judicial review. The Court stated that the government had the discretion to construct policies and have an error in it thereof as long as the Constitutional guidelines are being adhered to. 

With the elimination of the locus standi principle, suo moto cases and Public Interest Litigations (PILs) have granted the judiciary the power to meddle in matters relating to the well-being of the general public even when the offended party did not raise any objections. 

The way forward 

Judges, especially in a country like India, have potent judicial powers in their hands. Most importantly, they have the power of judicial review. This is why it is crucial for the judiciary to not only avert abuse and misuse of power but also to cease exploitation and unjust activities. 

Furthermore, there should be a clear deliberation on judicial activism and the proper use of PILs, in order to make sure that such tools are not used for political motives. The judiciary needs to scrutinise why a particular writ or PIL was filed in cases where a constitutional remedy is sought. The CAA, or the abrogation of Article 370, was opposed in the Hon’ble Supreme Court for gaining a political agenda. This is why when such cases reach the judiciary for review, they should be carefully scrutinised as to whether there is an ulterior motive or if it is against the betterment of the common people. 

Moreover, many a time, NGOs are puppets of political parties or of those who are backed up by international countries or communities wishing nothing but ill for the sovereignty of the country, thus, it is high time the courts look through the transparent glass doors and carefully examine the motives of parties seeking such remedies. 

Another polemic issue on the interpretation of the Constitution occurred when the constitutional power to appoint the Chief Justice of India (CJI) was taken away from the President by the Hon’ble Supreme Court. Such acts must undergo careful judicial scrutiny. 

Here in India we have adopted the concept of Separation of power so we cannot assume the power of judicial review in full extended form. If the courts presume full and arbitrary power of judicial review it will lead to the poor performance of work by all the organs of government. So to keep all the functions work properly each has to work in its provided sphere. In India, we have the concept of judicial review embedded in the basic structure of the constitution. It helps the courts to keep a check and balance upon the other two organs of government so that they don’t misuse their power and work in accordance with the constitution.

The function of judicial review is one of the most powerful systems in the Indian Constitution. This doctrine absolutely has its roots in India and has an explicit sanction in the Indian Constitution. 

The process of judicial review functions as a guardian of the Constitution and also safeguards the fundamental rights enshrined under the Constitution. Moreover, it also distributes power between the union and the states and clearly defines the functions of every organ functioning in the nation. W e have developed the concept of judicial review and it has become the part of basic structure in case of Minerva Mills V. Union of India. So, at last, it is correct to say that judicial review has grown to safeguard the individual right, to stop the use of arbitrary power and to prevent the miscarriage of justice.

Some FAQs on judicial review 

What is judicial review a decision about.

Judicial review is a sort of court proceeding where the legitimacy of a ruling/verdict or act performed by a public authority is examined by a judge. This is to say,  it is a challenge to the manner in which a ruling has occurred rather than the rights and wrongs of the inference reached.  

What is the difference between judicial review and appeal? 

• Judicial review is not statutory, whereas appeals are statutory. 
• Only public bodies are subjected to judicial reviews, whereas appeals are applicable to both- private and public bodies. 
• In judicial review, the court scrutinises only the manner in which a decision was taken, whereas, in an appeal, the court examines the rulings made by inferior courts to determine whether such a decision was correct or not. 

What are some possible remedies available in judicial review?

The remedy in a judicial review is discretional. So, even if a public authority has operated in an illegal manner, the court may decline to issue any remedy if such an act was committed in the interest of the public. There are a few possible remedies, inter alia in judicial review proceedings, namely-

Quashing Orders

It reverses any judgement or rolling or action under review, making it lawfully void.   

Mandatory Orders

It coerces a public authority to perform a particular act, for instance, to revive a decision within a specific time period.   

Prohibiting Orders

It prohibits or restricts a public authority from making a decision. 

Declarations 

It is a declaration of what the law is, in cases where there is a clash.  

Such orders are those that order a public authority to pay for damages. Nonetheless, such a remedy is only functional when some other legal remedy is also sought.  

Can a judicial review decision be appealed or curtailed?

The Supreme Court in the case of B. C. Chaturvedi vs. Union of India and ors. (1995) held that “Judicial review is not an appeal from a decision but a review of the manner in which the decision is made.”

Thus, it is implied to ensure that the person receives fair and just treatment and not for ensuring that the ruling attained by the authorities is appropriate in the eyes of the Court.  

Can a judicial review be overruled or rescinded?

There was a clause added by the 42nd Amendment of 1976, inter alia , to Article 368, placing a constitutional amendment beyond judicial review. Further, in the Kesavananda Bharati case, the Court reached the hypothesis that judicial review is the ‘basic feature’ of the Constitution and cannot be eliminated by any authority.    

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The Judiciary - Concepts - Chapter 4 Class 9 Political Science - Working of Institutions - Political Science

Last updated at April 16, 2024 by Teachoo

The Judiciary

• All the courts at different levels in a country put together are called the judiciary .
• The Indian judiciary consists of a Supreme Court for the entire nation, High Courts in the states, and District Courts-The courts at the local level.
• India has an integrated judiciary which means the Supreme Court controls the judicial administration in the country. Its decisions are binding on all other courts of the country.
• It can take up any dispute-
• Between citizens of the country
• Between citizens and government
• Between two or more state governments
• Between g overnments at the union and state level
• Independence of the judiciary means that it is not under the control of the legislature or the executive. The judges do not act on the direction of the government or according to the wishes of the party in power.
• The judges of the Supreme Court and the High Court s are appointed by the President on the advice of the Prime Minister and in consultation with the Chief Justice of the Supreme Court.
• Once a person is appointed as judge of the Supreme Court or the High Court it is n early impossible to remove him or her from that position.
• A judge can be removed only by an impeachment motion passed separately by two-thirds of members of the two Houses of Parliament.
• The judiciary in India is one of the most powerful in the world.
• The Supreme Court and the High Courts have the power to interpret the Constitution of the country.
• They can determine the Constitutional validity of any legislation or action of the executive in the country when it is challenged before them. This is known as the judicial review .
• The Supreme Court of India has also ruled that the core or basic principles of the Constitution cannot be changed by the Parliament.
• The powers and the independence of the Indian judiciary allow it to act as the guardian of Fundamental Rights. Anyone can approach the courts if the public interest is hurt by the actions of the government. This is called public interest litigation .

Davneet Singh

Davneet Singh has done his B.Tech from Indian Institute of Technology, Kanpur. He has been teaching from the past 14 years. He provides courses for Maths, Science, Social Science, Physics, Chemistry, Computer Science at Teachoo.

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Legal Dictionary

The Law Dictionary for Everyone

Judicial Review

In the United States, the courts have the ability to scrutinize statutes, administrative regulations, and judicial decisions to determine whether they violate provisions of existing laws, or whether they violate the individual State or United States Constitution . A court having judicial review power, such as the United States Supreme Court, may choose to quash or invalidate statutes, laws, and decisions that conflict with a higher authority. Judicial review is a part of the checks and balances system in which the judiciary branch of the government supervises the legislative and executive branches of the government. To explore this concept, consider the following judicial review definition.

Definition of Judicial Review

• Noun. The power of the U.S. Supreme Court to determine the constitutionality of laws, judicial decisions, or acts of a government official.

Origin:  Early 1800s  U.S. Supreme Court

What is Judicial Review

While the authors of the U.S. Constitution were unsure whether the federal courts should have the power to review and overturn executive and congressional acts, the Supreme Court itself established its power of judicial review in the early 1800s with the case of Marbury v. Madison (5 U.S. (1 Cranch) 137, 2L Ed. 60). The case arose out of the political wrangling that occurred in the weeks before President John Adams left office for Thomas Jefferson.

The new President and Congress overturned the many judiciary appointments Adams had made at the end of his term, and overturned the Congressional act that had increased the number of Presidential judicial appointments. For the first time in the history of the new republic , the Supreme Court ruled that an act of Congress was unconstitutional. By asserting that it is emphatically the judicial branch ’s province to state and clarify what the law actually is, the court assured its position and power over judicial review.

Topics Subject to Judicial Review

The judicial review process exists to help ensure no law enacted, or action taken, by the other branches of government , or by lower courts, contradicts the U.S. Constitution. In this, the U.S. Supreme Court is the “supreme law of the land.” Individual State Supreme Courts have the power of judicial review over state laws and actions, charged with making rulings consistent with their state constitutions. Topics that may be brought before the Supreme Court may include:

• Executive actions or orders made by the President
• Regulations issued by a government agency
• Legislative actions or laws made by Congress
• State and local laws
• Judicial error

Judicial Review Example Cases

Throughout the years, the Supreme Court has made many important decisions on issues of civil rights , rights of persons accused of crimes, censorship , freedom of religion, and other basic human rights.  Below are some notable examples.

Miranda v. Arizona (1966)

The history of modern day Miranda rights begins in 1963, when Ernesto Miranda was arrested for, and interrogated about, the rape of an 18-year-old woman in Phoenix, Arizona. During the lengthy interrogation, Miranda, who had never requested a lawyer , confessed and was later convicted of rape and sent to prison . Later, an attorney appealed the case, requesting judicial review by the Supreme Court, claiming that Ernesto Miranda’s rights had been violated, as he never knew he didn’t have to speak at all with the police.

The Supreme Court, in 1966, overturned Miranda’s conviction, and the court ruled that all suspects must be informed of their right to an attorney, as well as their right to say nothing, before questioning by law enforcement. The ruling declared that any statement, confession, or evidence obtained prior to informing the person of their rights would not be admissible in court. While Miranda was retried and ultimately convicted again, this landmark Supreme Court ruling resulted in the commonly heard “Miranda Rights” read to suspects by police everywhere in the country.

Weeks v. United States (1914)

Federal agents, suspecting Fremont Weeks was distributing illegal lottery chances through the U.S. mail system, entered and searched his home, taking some of his personal papers with them. The agents later returned to Weeks’ house to collect more evidence, taking with them letters and envelopes from his drawers. Although the agents had no search warrant , seized items were used to convict Weeks of operating an illegal gambling ring.

The matter was brought to judicial review before the U.S. Supreme Court to decide whether Weeks’ Fourth Amendment right to be secure from unreasonable search and seizure , as well as his Fifth Amendment right to not testify against himself, had been violated. The Court, in a unanimous decision, ruled that the agents had unlawfully searched for, seized, and kept Weeks’ letters. This landmark ruling led to the “ Exclusionary Rule ,” which prohibits the use of evidence obtained in an illegal search in trial .

Plessey v. Ferguson (1869)

Having been arrested and convicted for violating the law requiring “Blacks” to ride in separate train cars, Homer Plessey appealed to the Supreme Court, stating the so called “Jim Crow” laws violated his 14th Amendment right to receive “equal protection under the law.” During the judicial review, the state argued that Plessey and other Blacks were receiving equal treatment, but separately. The Court upheld Plessey’s conviction, and ruled that the 14th Amendment guarantees the right to “equal facilities,” not the “same facilities.” In this ruling, the Supreme Court created the principle of “ separate but equal .”

United States v. Nixon (“Watergate”) (1974)

During the 1972 election campaign between Republican President Richard Nixon and Democratic Senator George McGovern, the Democratic headquarters in the Watergate building was burglarized. Special federal prosecutor Archibald Cox was assigned to investigate the matter, but Nixon had him fired before he could complete the investigation. The new prosecutor obtained a subpoena ordering Nixon to release certain documents and tape recordings that almost certainly contained evidence against the President.

Nixon, asserting an “absolute executive privilege” regarding any communications between high government officials and those who assist and advise them, produced heavily edited transcripts of 43 taped conversations, asking in the same instant that the subpoena be quashed and the transcripts disregarded. The Supreme Court first ruled that the prosecutor had submitted sufficient evidence to obtain the subpoena, then specifically addressed the issue of executive privilege. Nixon’s declaration of an “absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances,” was flatly rejected. In the midst of this “Watergate scandal,” Nixon resigned from office just 15 days later, on August 9, 1974.

The Authority Behind Judicial Review

Interestingly, Article III of the U.S. Constitution does not specifically give the judicial branch the authority of judicial review. It states specifically:

“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.”

This language clearly does not state whether the Supreme Court has the power to reverse acts of Congress. The power of judicial review has been garnered by assumption of that power:

• Power From the People . Alexander Hamilton, rather than attempting to prove that the Supreme Court had the power of judicial review, simply assumed it did. He then focused his efforts on persuading the people that the power of judicial review was a positive thing for the people of the land.
• Constitution Binding on Congress . Hamilton referred to the section that states “No legislative act, therefore, contrary to the Constitution, can be valid,” and pointed out that judicial review would be needed to oversee acts of Congress that may violate the Constitution.
• The Supreme Court’s Charge to Interpret the Law . Hamilton observed that the Constitution must be seen as a fundamental law, specifically stated to be the supreme law of the land. As the courts have the distinct responsibility of interpreting the law, the power of judicial review belongs with the Supreme Court.

What Cases are Eligible for Judicial Review

Although one party or another is going to be unhappy with a judgment or verdict in most court cases, not every case is eligible for appeal . In fact, there must be some legal grounds for an appeal, primarily a reversible error in the trial procedures, or the violation of Constitutional rights . Examples of reversible error include:

• Jurisdiction . The court wrongly assumes jurisdiction in a case over which another court has exclusive jurisdiction.
• Admission or Exclusion of Evidence . The court incorrectly applies rules or laws to either admit or deny the admission of certain vital evidence in the case. If such evidence proves to be a key element in the outcome of the trial, the judgment may be reversed on appeal.
• Jury Instructions . If, in giving the jury instructions on how to apply the law to a specific case, the judge has applied the wrong law, or an inaccurate interpretation of the correct law, and that error is found to have been prejudicial to the outcome of the case, the verdict may be overturned on judicial review.

Related Legal Terms and Issues

• Executive Privilege – The principle that the President of the United States has the right to withhold information from Congress, the courts, and the public, if it jeopardizes national security, or because disclosure of such information would be detrimental to the best interests of the Executive Branch .
• Jim Crow Laws – The legal practice of racial segregation in many states from the 1880s through the 1960s. Named after a popular black character in minstrel shows, the Jim Crow laws imposed punishments for such things as keeping company with members of another race, interracial marriage, and failure of business owners to keep white and black patrons separated.
• Judicial Decision – A decision made by a judge regarding the matter or case at hand.
• Overturn – To change a decision or judgment so that it becomes the opposite of what it was originally.
• Search Warrant – A court order that authorizes law enforcement officers or agents to search a person or a place for the purpose of obtaining evidence or contraband for use in criminal prosecution.

11.1 What Is the Judiciary?

Learning outcomes.

By the end of this section, you will be able to:

• Distinguish between rule of law and rule by law.
• Identify the responsibilities of a judicial system.
• Compare and contrast the different methods states and countries use to select judicial officers.
• Discuss major criticisms of each method of judicial selection.

In Chapter 4: Civil Liberties , you learned that law is a body of rules of conduct, with binding legal force and effect, that is prescribed, recognized, and enforced by a controlling authority. In the world today, that authority is usually the government of a particular area. However, multiple levels of government may have authority in a given place. The power of a governmental body to exercise the highest authority in an area is called sovereignty . If a government has sovereignty over a particular region, that government can create and impose rules on people within the region.

Chapter 4: Civil Liberties also introduced the rule of law , the principle that the government is beholden to its laws, not to any individual or group. Throughout history, many individuals and small groups have become dictators with the sole power to create laws and punish people as they wished, thus employing rule by law . There are still some dictators in the world today, as in North Korea . Dictatorships are oppressive, and dictatorial regimes are prone to corruption. By following the rule of law, robust democracies try to avoid these injustices.

Court Shorts: Rule of Law

In this brief video, United States judges who preside over different types and levels of courts discuss the meaning of the rule of law and the role it plays in our everyday lives.

Recall the four principles of the rule of law:

• Accountability: The government and private actors are accountable under the law. No one is above the law.
• Just laws: The laws are clear, publicized, stable, and applied evenly, and they protect fundamental rights, including the security of persons and property and certain core human rights.
• Open government: The processes by which the laws are enacted, administered, and enforced are accessible, fair, and efficient.
• Accessible and impartial dispute resolution: Justice is delivered in a timely manner by competent, ethical, independent, and neutral decision-makers who have adequate resources and reflect the communities they serve.

These principles demonstrate that the government and the people are in a social contract , a voluntary agreement whereby the people consent to abide by specific rules while living in the territory and the government consents to limit itself to acting in accordance with certain standards. This creates a symbiotic relationship between the government and the people, rather than a system based on fear and oppression.

In each democratic country, a constitution sets up the framework for government operations that adhere to these four principles. The constitution formalizes how the country’s government will wield authority and implement powers under that authority. The constitution may be written or unwritten, in one document or several, and titled constitution or basic laws . Whatever its form or title, a constitution establishes the basic government structure for the government’s sovereign territory. It usually creates branches with differing powers that have the ability to check each other in the exercise of those powers. One of the branches that carries out the rule of law in a country is the judicial branch.

The judicial system or judicial branch is the court system that interprets, defends, and applies the law in the government’s name. It is the mechanism for peacefully resolving disputes between individuals. Sometimes people refer to this branch of government as the judiciary, but that can be confusing because the judiciary also refers to the people who work in the judicial branch. Therefore, this chapter will consistently refer to the branch of government as the judicial branch and the people who work in that branch as the judiciary.

The judicial branch serves different purposes in different political systems. For example, in a political system that prioritizes civil rights and liberties, the judiciary working within the judicial branch checks government action and protects individual rights and liberties. In a system in which there is a separation of powers between the branches of government, the judiciary has judicial independence . In these systems, often the courts can perform a judicial review to check government actions. In judicial review , a judge interprets and implements the constitution to ensure that the other branches of government do not violate what it says. Judicial review will be explored later in this chapter.

In contrast, some political systems rely on adherence to strict religious or political standards, creating authoritarian law regimes. In these systems, the judicial branch and the judiciary help impose the government’s approved viewpoint on the citizens through rule by law . In these systems, the judiciary has little independence. The judicial system acts as a source of government control over individual citizens. 3 Tom Ginsburg and Tamir Moustafa identify five primary functions of courts in these authoritarian rule-by-law regimes:

• To establish social control and sideline political opponents
• To bolster a regime’s claim to legal legitimacy
• To strengthen administrative compliance within the state’s own bureaucratic machinery and solve coordination problems among competing factions within the regime
• To facilitate trade and investment
• To implement controversial policies so as to allow political distance from core elements of the regime 4

Justice Handed Over to Dictatorship from the Film Judgment at Nuremberg

The 1961 film Judgment at Nuremberg portrays the military tribunal at which four German judges who served while the Nazis were in power face charges of crimes against humanity. In this clip, the former minister of justice explains changes in the judiciary under the dictatorship of the Third Reich.

In rule-by-law authoritarian regimes, the government suppresses opposition and imposes a specific viewpoint on any part of the government or the population to the extent that human rights violations occur. 5 Iran and North Korea are examples of rule-by-law authoritarian regimes. The dictatorial leader of North Korea is selected to a lifetime appointment on a state-approved ballot where only one candidate is listed. This leader has control over the judiciary, and all must adhere to the leader’s will or face retribution. 6

Other countries have come to have an authoritarian-populist judiciary . This means that, through changes instituted by one ruling person or political party, they have transitioned from a rule-of-law system to a rule-by-law authoritarian subsystem. In Turkey, longtime president Recep Tayyip Erdoğan and his ruling party replaced the governmental system in 2017 and have enacted laws to keep themselves in power. Changes in 2007, 2010, and 2017 gave Erdoğan and his ruling party the ability to appoint and dismiss prosecutors and judges, thus calling into question the independence of the judiciary. 7 A European Commission report in 2020 found that the continued centralization of power in the president was blurring the lines of separation of powers in the branches of government such that few checks and balances remain: “Under these conditions, the serious backsliding of the respect for democratic standards, the rule of law, and fundamental freedoms continued.” 8 The report identified significant issues with the Turkish judicial system and its slide into rule by law, not the rule of law:

“Turkey’s judicial system is at an early stage of preparation and serious backsliding continued during the reporting period. Concerns remained, in particular over the systemic lack of independence of the judiciary. The president announced the Judicial Reform Strategy for 2019–2023 in May 2019. However, it falls short of addressing key shortcomings regarding the independence of the judiciary. No measures were announced to remedy the concerns identified by the Council of Europe’s Venice Commission and in the European Commission’s annual country reports. There are concerns that dismissals in the absence of respect for due procedures caused self-censorship and intimidation within the judiciary. No measures were taken to change the structure of, and process for, the selection of members of the Council of Judges and Prosecutors to strengthen its independence. Concerns regarding the lack of objective, merit-based, uniform and pre-established criteria for recruiting and promoting judges and prosecutors persisted. No changes were made to the institution of criminal judges of peace so that concerns regarding their jurisdiction and practice remained.” 9

One can thus see the difference between the rule of law and rule by law. Each judicial system can be assessed on the basis of how well it meets the rule-of-law criteria for protecting the rights of the people from government overreach, manipulation, and the rise of dictatorships.

How the Judicial Branch Differs from the Other Branches of Government

Judicial branches differ from the executive and legislative branches because, unlike in those branches, the judicial system restricts how the courts may act and how the people may express their opinions to the courts. A good description of this restriction appears in Federalist no. 78, wherein Alexander Hamilton wrote about the judicial branch as it is described in the US Constitution:

“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but also holds the sword of the community. The legislature not only commands the purse, but also prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatsoever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” 10

In rule-of-law systems, the judicial branch depends on the other branches and the population’s respect for the rule of law to carry out its decisions. An example helps illustrate the differences between the branches and their powers. In the United States, a president alarmed at the number of gun shootings occurring in the country can create a commission to review the problem and make recommendations to Congress to enact new laws. The president (the executive) can implement some of these recommendations by executive order , a particular type of binding law that only the chief executive can create. The people can express their views on the subject to the president at any time. Congress (the legislature) may also be alarmed about the number of gun killings. They can open an investigation and create a statute to limit some access to guns. Again, the people can express their views on this subject to Congress at any time. In both examples, government officials decide what they want to investigate and what actions they want to take, and the people can freely voice their opinions on the subject. Courts, however, cannot take action on their own in the ways the executive and legislative branches can, and people cannot express their opinion in court unless they meet particular criteria. A court can only take action if it has jurisdiction over a specific case. Jurisdiction is the written authority, stated in a constitution or a statute, that authorizes a court to hear a case. Jurisdiction includes both the geographical region and the topics of the court’s authority.

What Can I Do?

Critical thinking and the courts.

Every functioning government must have a functioning judicial system. As you study the different forms of judicial systems, how they operate, and elements such as the standards of evidence across different judicial systems, as well as different types of law, you are sharpening your critical thinking skills. Being able to understand and explain why someone is found innocent of a particular crime, for example, requires the ability to analyze, evaluate, and synthesize various pieces of information coming from the defense attorney, the prosecutor, the facts of the case, and the components of the law in question. This is the core of critical thinking, and it is a fundamental skill that is utilized in virtually any career. Critical thinking skills are highly valued, and they take work and practice to develop. Studying topics such as courts and judiciary systems is a good way not only to prepare for a career within the legal world—as an attorney, for example—but also to hone general critical thinking skills that are invaluable regardless of what direction your professional path in life takes.

Selecting Judicial Officers

There are as many ways to select judicial officers as there are countries in the world. The particulars of the selection process vary widely by country. The selection process can also differ for different levels or types of courts within a country. All of the selection processes can be sorted into four broad categories:

• Appointment for life
• Appointment for a specified number of years
• Hybrid, or a combination of these methods (e.g., appointment followed by retention election)

Lifetime Appointments

The US Constitution establishes a Supreme Court of the United States (SCOTUS) and authorizes Congress to create other Article III courts . 11 The judges for these courts are nominated by the president and confirmed by the US Senate. These Article III judges serve for life, as long as they remain on “good behavior.” There is no mandatory retirement age. These courts have the power of judicial review and, once appointed, are independent of the other branches of government.

Congress can change any court’s jurisdiction except SCOTUS’s original jurisdiction . Still, neither Congress nor the president can fire a judge nor stop the judge’s salary if they disagree with a decision the judge makes. Thus, the judiciary in the United States has some measure of independence, but judges are often subject to political pressure during the appointment process.

Article III courts include the United States Supreme Court, US circuit courts of appeals , and US district courts . There is only one SCOTUS, but there are 13 circuit courts of appeals and about 100 district courts. All have multiple judges, so the power to appoint judges is a substantial one. Moreover, because these judges are appointed for life, a president can influence the interpretation of the law and the Constitution well beyond that president’s term of office. As noted by legal scholar Alexander Bickel , “You shoot an arrow into a far distant future when you appoint a [US federal] justice, and not the man himself can tell you what he will think about some of the problems that he will face.” 12

THE CHANGING POLITICAL LANDSCAPE

Women on high courts around the world.

While gender representation on high court benches across the globe skews toward men, studies suggest that the rate of women on judiciaries in countries around the world rose by about 29 percent between 2011 and 2019. Research suggests that a high court judge’s gender may be a better predictor of how they will decide a case than their political leanings and that the gender composition of a court can influence how individual judges view a case. 13

Ethiopia’s First Female Supreme Court Chief Justice: Meaza Ashenafi

In this clip, Meaza Ashenafi, the first ever female Chief Justice on Ethiopia's Supreme Court, talks about how she worked to define sexual harassment and violence against women in the Amharic language, the official language of Ethiopia. She goes on to discuss the importance of the impartiality of the courts and the role courts play in serving their communities.

The lifetime appointment of judges outside the United States is rare. Even in countries that say they appoint certain judges to lifetime terms, these judges are held to a mandatory retirement age. 14 For example, in the United Kingdom, Supreme Court justices are not subject to term limits , but they must retire by age 70. 15 Additionally, in the United Kingdom, there are minimum requirements for nomination, and a nominating commission reviews applicants. Finally, this type of appointment applies only to a particular court, not to all courts in a broad category, as in the United States.

In Belgium, the monarch appoints constitutional court judges from a list of candidates submitted by Parliament. 16 As in the UK, these judges are appointed for life with mandatory retirement at age 70. The monarch selects judges for the supreme court, the Court of Cassation, from candidates submitted by the High Council of Justice, an independent 44-member body consisting of both judicial and nonjudicial members. Like constitutional court judges, Court of Cassation judges are appointed for life with a mandatory retirement age of 70. 17

Recent discussions in the United States have debated instating a mandatory retirement age or setting a term limit for Article III judges. 18

Appointment for a Term of Years

There is a second type of US federal judge: those appointed for a term of years. Congress, in creating these courts, specifies the qualifications of the judge and the term of service. 19 Potential judges apply for the office as one would apply for any other job. A hiring committee selects the judge. Several US states also appoint some of their judges for a term of years. The process for an appointment varies by state. 20

Many countries appoint some of their judges for a term of years, though the processes by which they do so differ. 21 For example, in Albania, the president alone makes some nine-year appointments. 22 On the other hand, the Chinese legislature, the People’s National Congress, appoints the chief justice of their national supreme court for a limit of two consecutive five-year terms. 23 To be considered for most judicial appointments in France, an attorney must pass a series of entrance examinations. 24 They must then attend special classes and pass a series of difficult examinations to be eligible for an appointment as a judge. The Ministry of Justice oversees this process without any executive input.

Appointment by Election

A few US states use a rare process, election, to select some judges. In a 1988 speech, Hans Linde , a former justice of the Oregon Supreme Court, said “To the rest of the world, American adherence to judicial elections is as incomprehensible as our rejection of the metric system.” 25

When judges are directly elected, the judiciary is an agent of the government with limited independence. The voters use their votes to pass judgment on judicial decisions in the same way that they use their votes to weigh in on the actions of the executive and legislative branches. Thus, one of the criticisms of judicial elections is that they incentivize judges to make politically popular decisions that are not necessarily correct interpretations of the law.

Different US states employ different types of judicial elections. A candidate’s political party is listed on the ballot in partisan elections , while the candidate’s political affiliation is not listed in nonpartisan elections . Many states have moved away from direct elections and toward retention elections. In a retention election , a judge is appointed for a term of years, and at the end of that term, an election is held to determine if the judge should be retained for another term or replaced. 26

Texas is one of the few states that still holds partisan elections for almost all judgeships in the state. 27 As a result, candidates run for office just like all other elected officials. They align with a political party, receive the majority vote in the party’s primary election, and campaign showing their affiliation to the party. Most other states have moved away from this selection style because of issues with partisanship, such as the appearance of impropriety when someone makes a large campaign contribution before appearing before the court and the instability of a process that selects candidates based on political popularity rather than legal expertise. 28 Texas has been the object of scrutiny for allegations of favoritism to campaign donors and political party influence on judges. 29 As a result, there is pressure from a number of corners, including former and current judges, to change this system. 30 About 13 states still hold nonpartisan elections for some of their judgeships. These states assert that this enables people to have a say in the judiciary while removing political partisanship from the selection process. 31

Former Chief Justice of the Texas Supreme Court Wallace Jefferson on Electing Judges in Texas

In this clip, former Chief Justice of the Texas Supreme Court Wallace Jefferson weighs in on how he believes the state of Texas should select judges.

Switzerland also holds judicial elections in which the Federal Assembly, their legislative branch, elects judges to six-year terms. 32 A few other countries also hold some judicial elections.

Hybrid or Mixed Selection

Many countries have a hybrid system , with a mix of appointments for term and appointments for life depending on the type of court. 33 A couple of countries and a few US states have both appointments and elections. One common hybrid selection system used in several countries is an appointment with review after one term. In Japan, the chief justice of the Supreme Court is designated by the Cabinet and appointed by the monarch, while associate justices are appointed by the Cabinet and confirmed by the monarch. All justices are subject to a popular referendum at the first general election after their appointment and every 10 years thereafter. 34

Several US states use a hybrid system known as retention or the Missouri Plan . This system has gained popularity in the United States over the last 50 years. 35 In a retention system, the executive initially appoints a judge, with legislative approval, similar to the federal appointment process. The appointed person serves for a term of years. After this initial term, if a judge wants to remain in office, they must run in a retention election. There is no opposing candidate in a retention election; people vote on whether to keep or replace the judge. The judge runs on their record, and their party affiliation typically is not listed on the ballot. A retained judge remains in office for another term. In some states, there is a limit to the number of retention terms a judge may serve. If the judge is not retained, then the process starts again with new nominees and appointments. This style appeals to many Americans because it limits campaigning and political party influence over the judiciary while allowing the people some say over the judicial officers.

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Access for free at https://openstax.org/books/introduction-political-science/pages/1-introduction

• Authors: Mark Carl Rom, Masaki Hidaka, Rachel Bzostek Walker
• Publisher/website: OpenStax
• Book title: Introduction to Political Science
• Publication date: May 18, 2022
• Location: Houston, Texas
• Book URL: https://openstax.org/books/introduction-political-science/pages/1-introduction
• Section URL: https://openstax.org/books/introduction-political-science/pages/11-1-what-is-the-judiciary

© Jan 3, 2024 OpenStax. Textbook content produced by OpenStax is licensed under a Creative Commons Attribution License . The OpenStax name, OpenStax logo, OpenStax book covers, OpenStax CNX name, and OpenStax CNX logo are not subject to the Creative Commons license and may not be reproduced without the prior and express written consent of Rice University.

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14 Judicial Review

Tom Clark is the Asa Griggs Candler Professor of Political Science at Emory University.

• Published: 06 July 2017
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Judicial review is the power of a court to pass judgment on actions taken in other branches of government, most notably with respect to the constitutionality of legislation enacted by representative legislatures. It is a core feature of judicial power that is prominent in the American system and is increasingly prevalent around the world across all legal traditions. This chapter provides a brief overview of the historical origins and spread of the practice of judicial review. The chapter then reviews two streams of academic research––normative and empirical––that seek to understand the theoretical and practical implications of the practice of judicial review in a representative democracy. The chapter highlights fruitful avenues for future research at the intersection of these lines of inquiry.

Courts around the world often exercise the power to make declarations about the constitutionality of laws passed, and actions taken, by other branches of government. The process of allowing judges to review laws and actions is known as “judicial review” and constitutes an aspect of the judicial process to which scholars have paid great attention. Although judicial review comprises only one piece of the total body of nearly all courts’ dockets, some of the most politically salient and contentious decisions courts have made around the world are cases of judicial review. In this chapter, I first provide a brief overview of the practice of judicial review and what it entails. I then describe the origins of judicial review, starting with its intellectual roots in documents like the Magna Carta and leading up through the early years of the U.S. Constitution and following through the spread throughout the world of the contemporary, common practice. Next, I describe research on judicial review, examining both normative, philosophical work and more positive, empirical work. I conclude with some remarks on the current state of interest and knowledge about judicial review.

What Is Judicial Review?

In resolving disputes, between individuals, between individuals and the government, or between branches or levels of the government, courts must interpret the law and apply it to the question at hand in the case. Sometimes, though, there is conflict within the law. Two laws may prescribe inapposite actions. Particularly when those laws are hierarchically related—as in when a statute is in conflict with a constitution—judges exercise judicial review when they decide whether the “lower” law is invalid because of its inconsistency with the “higher” law. Below, I describe the emergence and evolution of this practice, but it is important to note at the outset that its intellectual roots lie in the observation that courts must interpret the law to apply it to individual cases, and it is unavoidable that at times some laws, because they were written at different times, for different purposes, or even intentionally, may conflict with each other. When one of those laws in a constitutional document—a law supreme to other laws, then it seems courts must opt to enforce the constitution rather than the legally inferior law.

A related issue concerns the locus of judicial review authority. In many common law systems, for example, any court with jurisdiction in a particular case may be competent to exercise judicial review. In other systems, though, judicial review is reserved to a designated court, perhaps one with a specialized constitutional function. Decentralized judicial review creates some opportunities, such as facilitating the adjudication of rights claims efficiently, without having to go to a special court. However, at the same time that opportunity creates the risk of disparate law governing different cases. A contemporary example concerns the state of same-sex marriage in the United States. In 2014, there were several cases pending before state and federal courts, challenging the constitutionality of state-level bans on same-sex marriage. Many judges, mostly federal judges, have declared those bans unconstitutional, though their decisions only have authority in their geographically defined jurisdictions. Therefore, whereas same-sex couples in Pennsylvania benefit from a federal judge’s opinion that bans on same-sex marriage violate the US Constitution, similar individuals in states like Georgia have not yet won such a case. Thus, whereas it is relatively easy for anyone affected to challenge the constitutionality of the same-sex marriage ban, there is not a uniform voice of constitutional law for the entire country.

At an opposite end of the spectrum are places like France, which traditionally did not have any possibility for judicial review in the context of individual cases. Prior to 2009, any law, once enacted and promulgated by the executive, could not be reviewed for its constitutionality. (Since the founding of the Fifth Republic, the particular circumstances under which a law might be challenged—and by whom—gradually evolved to a more permissive standard, even while retaining a strict prohibition on challenging laws as they are applied.) Since 2009, there has been a possibility of judicial review, through a procedure known as the question prioritaire de constitutionnalité , or QPC. QPC cases are decided only by the Conseil Constitutionnel and must be first verified by one of the high courts—administrative or judicial—and referred to the Conseil Constitutionnel. In other words, constitutional challenges are centralized in a single body and must pass through a series of demanding procedural tests and convince high judges of their importance before being addressed.

There are, moreover, other models of judicial review. In much of Latin America, for example, the recurso de amparo is essentially the most common form of judicial review and is open to citizens with low barriers. In Costa Rica, Sala IV of the Supreme Court of Justice has authority over constitutional claims, but it is easy to file a claim with the court. In some jurisdictions, like Colombia, these complaints number over 400,000 per year, as contrasted with the small numbers—one hundred or so—of constitutional claims adjudicated in places like the United States, France, or Chile. While there are important differences in how constitutional courts hear and process constitutional cases, the key issue here is that there is marked variation in what constitutional courts do with constitutional challenges.

In the next section, I describe the intellectual origins and spread of judicial review. In part, this history helps account for the different styles of judicial review, though there is more than historical accident to explain why some places exercise diffuse judicial review whereas others exercise centralized review, and why some places have extensive constitutional dockets whereas others have massive dockets. 1

Origins of Judicial Review

While the modern practice of judicial review has its origins in the federal and state judiciaries of the United States during the Founding era, the intellectual roots trace as far back as the Magna Carta. The Magna Carta was an agreement during the early thirteenth century between the king of England and the people of England that identified a number of principles limiting government power—in effect, rights. While debate exists about whether the Magna Carta in fact imposed meaningful limits on the monarch, the principle that government action may be limited by ex ante written agreements is at the core of judicial review. And, the Magna Carta has lived on as the symbol of government limited by written accord.

That principle would play a central role in the American Founding. The idea of writing a constitution that delegates government powers was to create an accountable government of limited powers, the implication being that exercises of authority in contravention of the constitution would be illegitimate. Who, though, would decide when government action crosses a constitutional line? That question, many have argued, was unresolved in the Constitution and remained a topic of speculation during the early years of the American Constitution. During the first decade of its existence, the U.S. Supreme Court reviewed the constitutionality of Acts of Congress as well as acts of state legislatures. However, it was not until the famous case of Marbury v. Madison (1803) that the Supreme Court first decided, in a formal opinion, that an Act of Congress was prohibited by the Constitution and therefore was not to be given effect.

Marbury is among the most famous cases in the history of American constitutional law. At stake in that case were a number of connected issues regarding early power struggles in America. However, the politically salient issue, from history’s perspective, concerns judicial appointments made by President Adams during his last days in office. The 1800 presidential election was a bitter one, pitting Adams and the Federalists against Thomas Jefferson and the Republicans. The dividing cleavage in this battle was the role, size, and strength of the federal government. Whereas Adams favored a strong national government, Jefferson thought the federal government should be sharply limited and prioritized states’ rights. In the wake of the election, but before the end of Adams’ term, there were a number of federal judicial posts that were vacant, including positions as Justices of the Peace in Washington, DC. Adams set out to fill them before leaving office. One judge, William Marbury, was nominated and confirmed to be Justice of the Peace in Washington, DC, the day before Jefferson was sworn in. However, Jefferson refused to deliver the paperwork to Marbury, who then sued James Madison, in his capacity of Secretary of State, seeking a writ of mandamus . Marbury brought the case directly to the U.S. Supreme Court.

When they considered the case, the justices faced a difficult situation. 2 If the Court were to rule against Jefferson and order Madison to deliver Marbury’s commission, there was a real chance that Jefferson would defy the Court and potentially retaliate. If the Court were to rule against Marbury, it would concede a political battle over the limits on executive power, implicitly limit the role of the Court in government, and make a decision that appeared, on its face, wrong. The genius of the Court’s decision in this case lies in its elegant solution. Led by Chief Justice John Marshall (who was a cousin and staunch political adversary of Jefferson), the Supreme Court held that (1) Marbury deserved to have his commission delivered by Madison but (2) the Supreme Court did not have the authority to grant the writ of mandamus , because the provision of the Judiciary Act of 1789 that was unconstitutional. The reason for holding the law unconstitutional was that, on Marshall’s reading of the law, it impermissibly created new original jurisdiction for the Supreme Court. The law could only give the Supreme Court appellate jurisdiction over writs of mandamus. The reason was that the Constitution clearly specifies which types of cases the Supreme Court can hear on “original” jurisdiction (meaning they can begin at the Supreme Court) and which types of cases the Supreme Court can only hear as an appellate court (meaning they must start elsewhere and work their way up to the Supreme Court). Because the Judiciary Act created a new type of original jurisdiction (i.e., the writ of mandamus) 3 the Act was inconsistent with the Constitution and therefore must be set aside. With this decision, Marshall not only took the high road on the political controversy—he was able to say that Marbury was in the right—but he also avoided the political conflict and turmoil that would follow if Jefferson ignored the Court’s order. However, perhaps more important, Marshall was able to establish the authority to exercise judicial review and declare Acts of Congress unconstitutional (and, seemingly, to oversee the executive branch). It may not have been a novel idea, but its use in this situation and the assent it attained from the elected branches marked the beginning of a judicial practice that has deepened and spread throughout the world ever since.

Since Marbury, the use and practice of judicial review has grown in depth and breadth. In the United States, federal courts continued to review the constitutionality of laws throughout the nineteenth century, though for most of that time declined to invalidate any as unconstitutional. There are, to be sure, notable exceptions, such as the U.S. Supreme Court’s decision in Scott v. Sanford , which invalidated the Missouri Compromise and is often credited with rendering unavoidable the Civil War. At the same time, judicial review began to spread to other parts of the world. Perhaps most important was the development of the writ of amparo in Mexico, which was an attempt to “introduce the basic principles of judicial review of the constitutionality of laws” in Mexico ( Zamudio 1979 : 309). Mexico’s innovation was to create a writ by which citizens could go to court to enforce individual rights against the government. And, the Mexican innovation has been attributed to the American experience, as recounted through de Tocqueville’s account of American politics and read by Mexican political figures. Moreover, just as in the American experience, the extent and import of judicial review has grown as the courts have extended the practice and attained political assent. Indeed, Mexican Constitution, both in the 1857 Constitution and during subsequent revisions, embodies the practice and subordinate laws have been written to formalize the practice ( Staton 2010 ; Zamudio 1979 : 315–16).

Throughout the nineteenth century, the practice of judicial review continued to spread throughout the world, especially through Latin America. The Mexican amparo served as a model for countries establishing constitutions and the rule of law through much of the twentieth century, especially South and Central American states. Today, most of the Latin American countries have a procedure like amparo to enable citizens to file constitutional claims before constitutional courts (e.g., Brewer-Carías 2009 ). Further abroad, places like Spain and the Philippines have adopted the amparo with similar outcomes—massive amounts of constitutional complaints being brought to a specialized constitutional tribunal. 4

At the same time, during the twentieth century, there was yet another period during which new constitutions were written—some at the end of World War II and others after the collapse of the Soviet Union—and many of the new constitutions adopted or created forms of judicial review that had by then become typical of Western systems with constitutional courts (see, e.g., Ginsburg 2008 ). Earlier in the twentieth century, after World War I, there was a smaller, but similar, spread of constitutional courts, including a Supreme Court in the Weimar Republic and a constitutional court in Austria. The 1920 Austrian constitution is often cited as one prototype for modern European constitutional courts. 5 The German case provide an interesting comparison to the Latin American amparo . In many ways, the intent is the same. The Constitutional Complaint , as it is known in Germany, provides a very flexible mechanism for bringing a complaint about an unconstitutional law to the German courts. However, as contrasted with Costa Rica and similar states with amparo , the constitutional complaint has relatively demanding standards. Not just anyone can bring a constitutional complaint at any time; instead there are restrictions and conditions that must be satisfied, which resemble in many aspects the American “case and controversy.” 6 Crucially, whereas the case and controversy rule is a judicially created doctrine in the United States, grounded in Article III, Section 2, of the Constitution, other countries often have more elaborate rules set out in their constitutions themselves. These rules may enumerate the kinds of claims that can be brought and/or the procedure for bringing constitutional cases. Moreover, whereas judicial review in the United States is a practice grounded in constitutional theory and judicial interpretation, in many countries judicial review is a process specifically authorized and detailed in the constitutions themselves. This is particularly true in most new constitutions.

Indeed, the prevalence of judicial review to a political culture in which individual rights are prominent or even central can be detected in twenty-first-century European politics. Supra-national institutions, such as the European Court of Human Rights and the European Court of Justice exist in large part to exercise a version of judicial review in which grievances about the conflict between laws can be resolved.

Research on Judicial Review

Two areas of research on judicial review have dominated the literature during much of the past one hundred years. Unfortunately, these literatures too often have not spoken directly to each other, though there are natural connections and important lessons that transcend the research programs (see, e.g., Friedman 2005 ).

Normative Concerns

Scholars of judicial review have puzzled at least since the end of the nineteenth century over the tension between a commitment to protecting individual rights via judicial review on one hand and the principle of democratic self-governance and accountability on the other hand. Commonly referred to as the “counter-majoritarian difficulty” (e.g., Bickel 1962 ), 7 the central puzzle can be summarized as follows. The signature intellectual feature of constitutionalism emerging from the era marked by the American and French Revolutions was that of liberal constitutionalism and the idea that one could create a government of limited powers. Liberal constitutionalism developed to entail two competing goals—government by majority rule and the protection of unalienable rights. A government of limited powers became synonymous with the idea of a written constitution and could, in theory, provide the basis for limiting the power of the people. The authority of the state would be under popular control, but there would be limits to the purposes to which that authority could be put. However, an inherent tension emerges in that any government powerful enough to carry out the powers of the state is also powerful enough to abuse individual rights, especially minority rights. How can one reconcile a commitment to giving the power of the state to elected majorities with the commitment to limit the power of those majorities? Clearly, something must give.

The innovation of judicial review provides a way to balance those goals. If the will of the people is to be limited by a written constitution, then there ought to be an institution or body responsible for identifying instances of transgression. Moreover, that body ought to be as removed from the elected majority as possible, for fear that the interpreter of government power be bound up with the government itself. The judiciary is the branch of government that is not directly accountable to the public (with limited exceptions, including many U.S. states, where judges are elected) and is charged not with making policy but with interpreting policy as made by legislative and executive officials in the process of applying those policies to individual cases. As John Marshall famously claimed in Marbury , in justifying the Supreme Court’s authority to invalidate a law via judicial review, “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”

The logic of Marshall’s claim is elegant. Courts are the institution charged with resolving disputes in individual cases. Doing so requires the capacity to interpret the law; it is a logical corollary of that responsibility. At the same time, it is unavoidable that at times, two laws will come into conflict. Courts must, therefore, have the capacity to decide what to do in such instances, which entails setting aside one law in favor of another. That this logical conclusion points to, of necessity, the authority to exercise judicial review follows directly from the principle that a constitution is the supreme law of the land.

However, as the use of judicial review by the judiciary grew over the course of the nineteenth century, scholars became increasingly concerned about the potential for the courts to usurp government authority and undermine the principle of self-government. As I explain later in this chapter, this period also marked the rise of legal realism, the view that judges do not merely interpret and apply the law as disinterested, neutral arbiters, but instead impose their own worldviews through the interpretation of the law. By the end of the nineteenth century, scholars were engaged in a heated debate about the conditions under which courts may legitimately exercise the power of judicial review. James Bradley Thayer published a landmark law review in 1893, entitled “The Origin and Scope of the American Doctrine of Constitutional Law,” which opened with the observation that state constitutions did not bestow upon the federal judiciary the power to declare legislation unconstitutional ( Thayer 1893 : 129). Thayer then criticizes the use of judicial review as being prone to abuse and inadequate for addressing the democratic deficiencies which defenders of minority rights argue is the justification for judicial review.

However, Thayer’s observation, rather than marking a point of resolution of the counter-majoritarian tension, would mark the beginning of a deep, complex intellectual struggle over judicial review. The early years of the twentieth century would witness increased “activism” by the U.S. Supreme Court, with important decisions such as Lochner v. New York serving as rallying calls for those concerned with judicial usurpation of policy-making powers, only a decade after Thayer’s essay.

Lochner was a case that came to the Supreme Court in 1904 and was decided in 1905. The issue was the following. The New York state legislature had enacted the Bakeshop Act in 1895. The law was meant to regulate the hours and sanitary conditions in bakeries. It is important to keep in mind the broader context in which this all took place. The late-nineteenth century was a period of considerable immigration and also of industrialization. Many unions worked to push for legislation to protect whites against immigrant labor (see, e.g., Kersch 2004 ). During these years, Upton Sinclair wrote The Jungle , which portrayed the unsanitary and dangerous working conditions immigrants found themselves in. It was under these circumstances that the Bakeshop Act imposed on bakers a limit of ten working hours per day and a weekly maximum of sixty hours. Lochner was a bakery owner convicted of violating the Bakeshop Act by allowing an employee to work over the limits. When the Supreme Court took up the Lochner case, it did so in the context of heated politics surrounding economic regulation, industrialization, and immigration. Conservatives of the time widely advanced a theory of “laissez-faire economics,” which held that the best policy is for government to stay out of regulating industry. Liberals, by contrast, adopted the view that with industrialization came relationships between employees and employers that were not just inherently unequal but prime to foster exploitation of the employee.

Its decision, which was decided by a 5–4 majority, held that the Bakeshop Act was unconstitutional because it violated a “liberty to contract” created by the Fourteenth Amendment. In the Court’s view, individuals were free to contract with employers, and restrictions on the working arrangements to which they could contract violated their liberty. The Court’s opinion claimed that being a baker is not hazardous to one’s health and that there is no reason why the State should be allowed to regulate baking. Justices Harlan and Holmes each wrote dissenting opinions, and Justice Holmes is perhaps the most often quoted. His dissent begins:

This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics. 8

The last line, referring to Spencer’s Social Statics refers to a mid-nineteenth-century libertarian political philosophy treatise by Herbert Spencer. Holmes’ opening paragraph was deeply incisive. He accuses the majority of using judicial review to pursue its own policy agenda. He also claims, presumably correctly, that the policy agenda advanced by the Court in the majority opinion was one of great public division. By claiming that the Fourteenth Amendment does not enact Social Statics , Holmes directly accuses the majority of trying to read into the Constitution a deeply divisive political philosophy of libertarianism. Following Lochner , reaction was at first mild but within months grew increasingly fierce. Libertarians rushed to praise the decision, whereas progressives and labor unions quickly denounced the decision ( Bernstein 2005 : 1500–1). Moreover, the course of history has had its way with Lochner , as it has become a symbol for conservative judicial activism and an expression to refer to the worst uses of judicial review. The critical point, though, is that with Lochner , the tension between judicial review and democratic governance was laid bare for the public, in the context of a national policy debate, for the second time in a half century. Moreover, the Court’s increased use of judicial review since the growth of the nation after the Civil War and with industrialization meant that this was not just an aberration like the Dred Scott case but was instead a fundamental tension in the Constitution with which we would have to wrestle.

Following Lochner , however, the Court’s laissez-faire approach to economic regulation persisted, as it increasingly brought the power of judicial review to bear on state regulations of employment conditions. Led by four justices known as the “Four Horsemen,” the Court developed a doctrine of substantive due process that would make it difficult for states or Congress to regulate the economy. The doctrine of substantive due process, coupled with a narrow reading of congressional powers under the Commerce Clause, would lead the Court, during the New Deal, into perhaps its greatest confrontation with the elected branches and a larger political battle about the role of judicial review in society.

Still the Court’s interpretation of the due process and commerce clauses did not spark the ire that it would during the 1930s. The Great Depression and New Deal legislative program that followed would mark an important point in the normative debate over judicial review. The Supreme Court, in reviewing President Roosevelt’s legislative efforts to overcome the depression, would adopt a rather suspect approach and invalidated a number of key provisions of the New Deal program. That those efforts were sometimes divided, and divided along generational and partisan lines, served to underscore the inherent difficulty associated with giving judges appointed to lifetime tenure an effective veto over elected majorities. If large legislative majorities could not enact regulatory legislation in a time of national—and, international—economic crisis because it did not comport with “out-of-date” understandings of the economy and the Constitution’s provisions pertaining thereto, then what had become of the principle of self-government. Was the American experience now one of a juristocracy, rather than a republican democracy? This question motivated a significant period of criticism of the Supreme Court (see, Clark 2011 : ch. 2). Indeed, it is notable that one of the earliest Gallup public opinion polls ever taken asked the public whether the Constitution should be amended to limit or take away the Court’s power to declare Acts of Congress unconstitutional. Fifty-nine percent of those who responded thought so ( Clark 2011 ).

However, while the Supreme Court did ultimately back down from its skeptical stance against the elected branches (more on this below), normative concern about the practice of judicial review continued. Indeed, in one watershed decision, US v. Carolene Products (1938), the Supreme Court noted (in the famous footnote 4 of the majority opinion) that it would shift its strictest applications of judicial review to specific kinds of cases—most specifically, those involving discrimination against “discrete and insular minorities.” Most notably, when the Supreme Court, in 1954, held unconstitutional the practice of racially segregating public schools, intellectuals were thrust into a difficult position. Liberals who had argued forcefully against the use of judicial review to invalidate legislation during the 1930s were now faced with a use of judicial review of which they morally approved. How could one square a desire to approve of Brown v. Board of Education with an intellectual position that calls for limiting judicial activism against the government?

In perhaps one of the most famous and important arguments on this subject, Alexander Bickel argued that the Supreme Court should exercise its “passive virtues” to decline to review cases where there are other branches or institutions more adequately prepared to resolve the controversy. Only when an issue is such that only the judiciary can be the one to resolve an inequity or injustice should the Court resort to constitutional judicial review. Bickel’s prescription, though, turned out to be insufficient just over a decade later when it seemed to justify the Court’s decision in Roe v. Wade , invalidating outright prohibition of abortion. Academics set out to outline a prescription for the use of judicial review that would simultaneously permit the Court’s invalidation of school segregation and proscribe the Court’s invalidation of abortion restrictions.

Among these proposals, John Hart Ely’s Democracy and Distrust (1980) is perhaps the most significant. Ely proposes that courts should be able to use judicial review when the inequities or rights violations are appropriate for judicial remedy, but only when those rights violations undermine the democratic process. In Ely’s view, the Constitution’s paramount goal is to ensure participation and democratic equality, when a majoritarian act is designed to inhibit or have the effect of inhibiting equal political participation, the Court should step in to correct the violation. Leveling the playing field, so to speak, allows the democratic process to work so that the majority can rule, but requires that minority voices and viewpoints be given their place in policy-making.

By the end of the twentieth century, however, debate moved away from an argument about the conditions that justify the exercise of judicial review to one about the role of myriad institutions in constitutional interpretation. The idea of “departmentalism” took hold, with scholars arguing that legislatures, executives, courts, and even the public all have a role in interpreting the Constitution. In this view, judicial decisions are but one part of a constitutional dialogue (see, e.g., Murphy 1986 ; Alexander and Schauer 1997 ; Whittington 2009 ). Others, including Tushnet (2000) and Kramer (2004) famously called for the people to engage in robust constitutional discourse to protect their rights themselves, rather than relying on the courts to do so. Eisgruber (2001) and Peretti (1999) argued that courts should engage in explicitly political judicial review in order to encourage and facilitate constitutional debate and respect for minority rights.

Debate about the appropriate role of judicial review in a democratic society continues. Of late, though, it has largely moved from a scholarly debate about the normative desirability of a counter-majoritarian check to a partisan debate about “judicial activism.” The phrase is one we hear often in political debates and the media, though it is rarely well conceptualized. Usually, it is used to criticize judicial decisions with which one disagrees. To conservatives, the Supreme Court’s decision to invalidate a portion of the Defense of Marriage Act was an example of “liberal judicial activism,” whereas the preceding day’s decision to invalidate the Voting Rights Act was a victory for liberty, “restor[ing] constitutional order.” 9 To liberals, the Voting Rights Act case was the worst kind of judicial activism, 10 whereas the DOMA decision as a triumph for equality. 11 Whether this debate is in the spirit of what scholars of constitutional theory have hoped for remains to be seen.

Empirical Patterns

Turning from normative to empirical scholarship on judicial review, there are (at least) two important issues to which research speaks. The first concerns how judicial review acts as a tool for conflict between the branches. The second examines how larger democratic institutions shape the consequences of judicial review. The empirical research, especially that motivated by the latter set of issues, has moved in recent years to speak more closely to the normative literature.

Beginning in the mid-twentieth century, scholars began to study the use of judicial review in the context of the countermajoritarian difficulty from a quantitative perspective. In a landmark study, Robert Dahl identified every instance in which an Act of Congress was struck down as unconstitutional (by the U.S. Supreme Court) and asked whether it seemed the Court was acting as an unduly anti-majoritarian Court ( Dahl 1957 ). Dahl’s finding is that legislation is very commonly invalidated within four years of enactment, and when legislation is struck down, enacting majorities usually have an opportunity to revisit the subject and pass new legislation. One reason, Dahl argues, is that 73 percent of Supreme Court vacancies take place within two years of the most recent vacancy. As a consequence, the Supreme Court is generally part of the dominant governing coalition.

While in many senses preliminary and less sophisticated than subsequent studies of judicial review, Dahl’s analysis highlights an important point that goes to the heart of normative debates about judicial review. Whereas the practice of judicial review might in theory be in tension with ideals of democratic majoritarianism, the method by which judges are selected implies a level of democratic representation on the courts that mitigates that tension.

While others have criticized Dahl’s study on various grounds—notably, Casper (1976) argues that by excluding Supreme Court review of state legislation, Dahl underestimates the Court’s countermajoritarianism—the crucial point remains unchallenged. However, it is important to note that the late twentieth century witnessed a period of relatively slow turnover on the Court. What is more, modern Supreme Court justices are increasingly insulated from the political process; with the retirement of Justice O’Connor in 2006, the Supreme Court had not a single member who had ever held elected office.

Indeed, Dahl’s thesis has served as a starting point for countless studies of judicial review. Scholars have probed the determinants of judicial votes to invalidate legislation (e.g., Howard and Segal 2004 ; Harvey and Friedman 2006 ; Lindquist and Solberg 2007 ; Keith 2008 ; Clark and Whittington n.d.) and largely concluded, not surprisingly, the decision to invalidate legislation is heavily attributed to attitudinal factors that influence most judicial choices (e.g., Segal and Spaeth 2002 ; Lindquist and Cross 2009 ) but that may be a modern-day phenomenon (see Epstein and Landes 2012 ).

Of course, these observations simply raise additional, empirically-driven concerns about the counter-majoritarian difficulty. If courts exercise judicial review in seemingly ideological ways, even if the majority selects who is on the court, does this not undermine the representative ideal? A series of studies I refer to collectively as “separation of powers analyses” look directly at this problem. The question motivating these studies is whether the courts are constrained by the elected branches. To the extent judicial review is limited by the authority of the elected branches, while one might worry more about the integrity of minority rights, majoritarian policy-making might find itself on stronger ground.

Many separation of powers analyses have studied statutory interpretation, though some of been concerned directly with judicial review. In these studies, a variety of theoretical mechanisms might constrain the use of judicial review. Epstein, Knight, and Martin (2001) argued, and Segal, Westerland and Lindquist (2011) demonstrate that the Supreme Court will exercise self-restraint when it is worried that Congress will diminish the Court’s power, through budgetary or similar means. Similarly, Vanberg (2005) argues that public support is critical to the meaningful exercise of judicial review. Because courts do not have the power to enforce their own decisions, they rely on political will to enforce their decisions; if elected officials decide to stand up against the courts, the whether the public supports the court or the elected officials will be the deciding factor for who “wins” in such a confrontation. A crucial component to Vanberg’s theory is that disputes between the courts and elected branches may involve complicated, or obtuse legal questions. The consequence is that the public will sometimes understand the issue at hand and sometimes not; the courts and elected officials must incorporate this prospect into their calculation about what will happen if they conflict. Staton (2010) extends that logic to examine how courts may engage with the public in order to clarify the issues at hand, through, for example, direct media action to inform the public. Clark (2011) proposes an alternative extension, claiming that political posturing by elected representatives, in the form of criticism of the Court, can be useful for figuring out where the public stands. The reason is, Clark observes, elected officials have a more direct connection with the public than the courts and therefore better information about whether the public will side with them in the event of a conflict with the courts.

Coming full circle to the Dahlian framework, Friedman (2010) documents an on-going, consistent pattern by which the courts respond to and in turn mold public opinion about hotly-debated policy and constitutional questions. The bottom line is that over time, public opinion affects judicial review in such a way that the meaning of the Constitution, as interpreted through judicial decisions, will in fact reflect popular opinion ( Friedman 2010 , 367–8). Thus, in many ways, the initial observation from Dahl still dominates the way in which scholars study the empirical use of judicial review. Judges may exercise judicial review in an ideologically-driven way, but the court is not entirely divorced from democratic accountability. Regular appointments to the courts by elected representatives ( Dahl 1957 ), institutional oversight and power ( Segal, Westerland, and Lindquist 2011 ; Rosenberg 1992 ), and the ultimate authority of the public will over both legislatures and courts ( Vanberg 2005 ) combine to create a system in which courts are simply part of a system of governance in which constitutional interpretation must take place, and institutional structures are designed to facilitate incorporating public sovereignty into the meaning of our laws.

Judicial review is an important institution in a liberal representative democracy. It provides a mechanism by which violations of constitutional rights or limitations can be addressed and remedied. The spread of the practice during the nineteenth and twentieth centuries has rendered it an omnipresent feature of modern democracy. However, with the rise of judicial review has come a series of normative and empirical debates about the use and practice of judicial review. Scholars have pondered how we can square judicial review with a commitment to majority rule, a question that really goes to the heart of the practice of liberal representative democracy. Empirical scholars have asked how, in practice, judicial review takes place in societies with powerful majoritarian institutions. These debates and lines of inquiry have been particularly acute in the context of constitution-writing and state-building that has characterized the last decade of the twentieth century and beginning of the current century. Perhaps even more so in an age where the tension between state power and individual rights have been in particular relief.

For one account of the tradeoffs and motivations behind different styles of constitutional dockets, see Clark and Staton (2015) .

For an overview of the strategic dilemma and a discussion of the problems confronting the justices, see Clinton (1994) and Knight and Epstein (1996) .

An interesting question concerns the implications of a similar action in which states or foreign ambassadors are the subjects of the lawsuit. In this instance, a plausible reading of the Constitution would enable the Court to take original jurisdiction over the case.

For a detailed description of the ruse of judicial review in democratic systems during the twentieth century, see Ginsburg (2003 : ch. 1).

The so-called Kelsenian constitutional court derives its name from Hans Kelsen, the author of several constitutions, notably the Austrian Constitution, during the early twentieth century.

For a thorough overview of the spread of judicial review and its various forms, see Ginsburg (2008) .

On the centrality of this debate to academic study of judicial review, see, for example, Friedman (2002) .

Lochner v. New York 198 U.S. 45, 75 (1905) (Holmes, J., dissenting).

See, e.g., http://www.cato.org/blog/supreme-court-restores-constitutional-order-strikes-down-outdated-voting-rights-act-provision .

http://blog.constitutioncenter.org/2013/09/the-voting-rights-decision-as-a-clear-example-of-judicial-activism/ .

http://www.huffingtonpost.com/2012/06/01/doma-unconstitutional-ruling_n_1560780.html .

Alexander, L. , and Schauer, F.   1997 . “ On Extrajudicial Constitutional Interpretation. ” Harvard Law Review 110(7): 1359–87.

Google Scholar

Bernstein, D. E . 2005 . “ Lochner v. New York : A Centennial Retrospective.” Washington University Law Review 83(5):1469–527.

Bickel, A.   1962 . The Least Dangerous Branch: The Supreme Court at the Bar of Politics . New Haven, CT: Yale University Press.

Google Preview

Brewer-Carías, A. R.   2009 . Constitutional Protection of Human Rights in Latin America: A Comparative Study of Amparo Proceedings . New York, NY: Cambridge University Press.

Casper, J. D. “ The Supreme Court and National Policy Making. ” The American Political Science Review 70(1): 50–63.

Clark, T. S.   2011 . The Limits of Judicial Independence . Cambridge: Cambridge University Press.

Clark, T. S. , and Staton, J. K.   2015 . “ An Informational Model of Constitutional Jurisdiction. ” Journal of Politics 77(3): 589–607.

Clark, T. S. , and Whittington, K. E. n.d. “Ideology, Partisanship, and Judicial Review of Acts of Congress, 1790–2006.” Emory University working paper.

Clinton, R. L.   1994 . “Game Theory, Legal History, and the Origins of Judicial Review: A Revisionist Analysis of Marbury v. Madison .” American Journal of Political Science 38(2): 285–302.

Dahl, R. A.   1957 . “ Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker. ” Journal of Public Law 6(2): 279–95.

Eisgruber, C. L.   2001 . Constitutional Self-Government . Cambridge, MA: Harvard University Press.

Ely, J. H.   1980 . Democracy and Distrust: A Theory of Judicial Review . Cambridge, MA: Harvard University Press.

Epstein, L. , Knight, J. , and Martin, A.   2001 . “ The Supreme Court as a Strategic National Policy Maker.”   Emory Law Journal 50(2): 583–611.

Epstein, L. and Landes, W. M.   2012 . ”Was There Ever Such a Thing as Judicial Self-Restraint? ” California Law Review 100: 557–78.

Friedman, B.   2002 . “ The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five. ” Yale Law Journal 112(1): 153–529.

Friedman, B.   2005 . “ The Politics of Judicial Review. ” Texas Law Review 84(2): 257–337.

Friedman, B.   2010 . The Will of the People . New York, NY: Farrar, Straus and Giroux.

Ginsburg, T.   2003 . Judicial Review in New Democracies: Constitutional Courts in Asian Cases . New York, NY: Cambridge University Press.

Ginsburg, T.   2008 . “The Global Spread of Constitutional Review,” in The Oxford Handbook of Law and Politics , edited by G. A. Caldeira , K. E. Whittington , and R. D. Keleman . New York, NY: Oxford University Press.

Harvey, A. , and Friedman, B.   2006 . “ Pulling Punches: Congressional Constraints on the Supreme Court’s Constitutional Rulings, 1987–2000. ” Legislative Studies Quarterly 31(4): 533–62.

Howard, R. M. , and Segal, J. A.   2004 . “ A Preference for Deference? The Supreme Court and Judicial Review. ” Political Research Quarterly 57(1): 131–43.

Keith, L. C.   2008 . The U.S. Supreme Court and the Judicial Review of Congress . New York, NY: Peter Lang.

Kersch, K. I.   2004 . Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law . New York, NY: Cambridge University Press.

Knight, J. , and Epstein, L.   1996 . “ On the Struggle for Judicial Supremacy. ” Law & Society Review 30(1): 87–120.

Kramer, L. D.   2004 . The People Themselves: Popular Constitutionalism and Judicial Review . New York, NY: Oxford University Press.

Lindquist, S. A. , and Cross, F. B.   2009 . Measuring Judicial Activism . Oxford: Oxford University Press.

Lindquist, S. A. , and Solberg, R. S.   2007 . “ Judicial Review by the Burger and Rehnquist Courts: Explaining Justices’ Responses to Constitutional Challenges. ” Political Research Quarterly 60(1): 71–91.

Murphy, W. F.   1986 . “ Who Shall Interpret? The Quest for an Ultimate Constitutional Interpreter. ” Review of Politics 48(3): 401–23.

Peretti, T. J.   1999 . In Defense of a Political Court . Princeton, NJ: Princeton University Press.

Rosenberg, G. N.   1992 . “ Judicial Independence and the Reality of Political Power. ” Review of Politics 54: 369–98.

Segal, J. A. , and Spaeth, H. J.   2002 . The Supreme Court and the Attitudinal Model Revisited . New York, NY: Cambridge University Press.

Segal, J. A. , Westerland, C. , and Lindquist, S. A.   2011 . “ Congress, the Supreme Court, and Judicial Review: Testing a Constitutional Separation of Powers Model. ” American Journal of Political Science 55(1): 89–104.

Staton, J. K.   2010 . Judicial Power and Strategic Communication in Mexico . New York, NY: Cambridge University Press.

Thayer, J. B.   1893 . “ The Origin and Scope of the American Doctrine of Constitutional Law. ” Harvard Law Review 7(3): 129–56.

Tushnet, M.   2000 . Taking the Constitution away from the Courts . Princeton, NJ: Princeton University Press.

Vanberg, G.   2005 . The Politics of Constitutional Review in Germany . New York, NY: Cambridge University Press.

Whittington, K. E.   2009 . The Political Foundations of Judicial Supremacy . Princeton, NJ: Princeton University Press.

Zamudio, H. F.   1979 . “A Brief Introduction to the Mexican Writ of Amparo .” California Western International Law Journal 9(2): 306–48.

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Judicial Review

Students review the concepts they were introduced to in a telecast on judicial review. After reading an article, they answer discussion questions and repeat the same procedure for another article. They participate in a debriefing session in which they review what they have gathered from the lesson.

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Book chosen, subject chosen, previous year papers, working of institutions.

When a person can move directly to the Supreme Court?

A person can move to the Supreme Court directly in the event of voilation of fundamental rights under Article 32.

What is meant by Judicial Review?

Judicial Review: (i)The Supreme Court and the High Courts have the power to interpret the Constitution of the country.

(ii)They can declare invalid any law of the legislature or the actions of the executive, whether at the Union level or at the state level, if they find such a law or action is against the Constitution. (iii)Thus they can determine the Constitutional validity of any legislation or action of the executive in the country, when it is challenged before them. This is known as the judicial review.

Where the Supreme Court is situated?

 New Delhi.

Which is the apex court in India?

The Supreme Court.

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Dolphins 2024 Training Camp Preview: CB Ethan Bonner

Alain poupart | 3 hours ago.

Ethan Bonner has stood out from the time he joined the Miami Dolphins as a rookie free agent, but there clearly is more to him than being an anomaly in the NFL.

Yes, white cornerbacks indeed are very rare, but what matters here is that Bonner showed some intriguing potential last season.

Bonner is the subject of our next installment in a series examining the players on the roster heading into the start of training camp, looking back at their 2023 season, how they joined the team, their contract status, and their outlook for the 2024.

ETHAN BONNER, CB

Height:  6-1 Weight:  186 lbs. Exp.:  1 Year School:  Stanford How Acquired:  Free agent (signed to future contract), 2024

2023 in Review

Bonner didn't make the team coming out of training camp, but he showed enough that the Dolphins signed him to the practice squad.

Bonner made his NFL debut against the New York Jets in the December game at Hard Rock Stadium and got 11 snaps on defense along with special teams work. He played another 13 snaps on special teams in the victory against the Dallas Cowboys in Week 16 and then got snaps on defense and special teams in the playoff game against the Kansas City Chiefs.

Though it came very late in a game where the outcome already had been decided, Bonner did force a fumble in the playoff game with great hustle.

Contract/Cap Info

After Bonner finished the season on the practice squad, the Dolphins re-signed him in January to a two-year contract worth a little less than $2 million, according to spotrac.

2024 Preview

The Dolphins have some question marks at cornerback beyond starters Jalen Ramsey and Kendall Fuller, and Bonner absolutely figures to be in the mix for a role in that group.

Kader Kohou looks like the front-runner for the slot corner job, particularly with Nik Needham seemingly headed for a new role at safety, and Bonner likely will compete with second-year player Cam Smith, newcomer Siran Neal and a group of rookies to earn snaps.

It was a rather uneventful offseason for Bonner, in terms of performances in those practices open to the media, but there's no reason to dismiss him as a possible contributor on defense if he can perform in training camp, joint practices and preseason opportunities.

PREVIOUSLY IN THIS SERIES

-- Dolphins Training Camp Preview: RB De'Von Achane

-- Dolphins Training Camp Preview: RB Salvon Ahmed

-- Dolphins Training Camp Preview: T Terron Armstead

-- Dolphins Training Camp Preview: LB Shaquil Barrett

-- Dolphins Training Camp Preview: WR Odell Beckham Jr.

-- Dolphins Training Camp Preview: CB Ethan Bonner

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ALAIN POUPART

Alain Poupart is the publisher/editor of AllDolphins.com and co-host of the All Dolphins Podcast. Alain has covered the Miami Dolphins on a full-time basis since 1989 for various publications and media outlets, including Dolphin Digest, The Associated Press, the Dolphins team website, and the Fan Nation Network (part of Sports Illustrated). In addition to being a credentialed member of the Miami Dolphins press corps, Alain has covered three Super Bowls (for NFL.com, Football News and the Montreal Gazette), the annual NFL draft, the Senior Bowl, and the NFL Scouting Combine. During his almost 40 years in journalism, which began at the now-defunct Miami News, Alain has covered practically every sport at one time or another, from tennis to golf, baseball, basketball and everything in between. The career also included time as a copy editor, including work on several books such as "Still Perfect," an inside look at the Miami Dolphins' 1972 perfect season. A native of Montreal, Canada, whose first language is French, Alain grew up a huge hockey fan but soon developed a love for all sports, including NFL football. He has lived in South Florida since the 1980s.

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