Evolution of Judicial Review
Judicial review -- the power of courts to declare legislative and executive actions unconstitutional -- is the most consequential doctrine in American constitutional law. Although the Constitution does not explicitly grant this authority, Chief Justice John Marshall's opinion in Marbury v. Madison (1803) established it as an inherent function of the judiciary. Marshall argued that because the Constitution is the supreme law of the land, and because it is the duty of courts to interpret the law, courts must necessarily have the power to strike down laws that conflict with the Constitution.
The doctrine evolved significantly over the following two centuries. Initially, the Court exercised judicial review sparingly, striking down only two federal statutes in the first seventy years after Marbury. The post-Civil War era saw a dramatic expansion, with the Court increasingly willing to invalidate both federal and state legislation on constitutional grounds. The Lochner era (1905-1937) represented an aggressive phase of judicial review, where the Court struck down economic regulations based on substantive due process. After the constitutional crisis of 1937, the Court retreated to a more deferential posture toward economic legislation while simultaneously expanding judicial review in the realm of individual rights and civil liberties.
Today, judicial review operates through a sophisticated framework of tiered scrutiny -- rational basis, intermediate scrutiny, and strict scrutiny -- that determines how aggressively the Court will examine legislative choices. The doctrine remains controversial, with ongoing debates about whether unelected judges should have the power to override democratic majorities, and if so, under what circumstances and guided by what interpretive methodology.
Timeline
Marbury v. Madison→
Established the foundational principle of judicial review, holding that courts have the power and duty to declare acts of Congress unconstitutional. Chief Justice Marshall's reasoning -- that the Constitution is paramount law and courts must give it effect -- transformed the judiciary from the weakest branch into a co-equal check on legislative and executive power.
McCulloch v. Maryland→
Extended judicial review to state legislation, holding that Maryland could not tax the federal bank because states cannot impede valid exercises of federal power. The case established that the Supremacy Clause gives federal courts the authority to invalidate state laws conflicting with the Constitution or valid federal statutes.
Dred Scott v. Sandford
The Court struck down the Missouri Compromise as unconstitutional, only the second time it had invalidated a federal statute. The decision, widely regarded as the worst in Supreme Court history, demonstrated both the power and the danger of judicial review when exercised without restraint or moral grounding.
Lochner v. New York→
Inaugurated a controversial era of aggressive judicial review of economic legislation, striking down a maximum-hours law for bakers as violating 'liberty of contract' under the Due Process Clause. The Lochner era became synonymous with judicial overreach, as the Court substituted its own policy preferences for those of elected legislatures.
West Coast Hotel v. Parrish→
Marked the end of the Lochner era by upholding a state minimum wage law, signaling the Court's retreat from aggressive judicial review of economic regulation. This 'switch in time that saved nine' established the modern framework of deferential review for economic legislation under rational basis scrutiny.
United States v. Carolene Products
Footnote Four of this otherwise unremarkable case outlined a theory of tiered judicial review: deferential rational basis review for economic legislation, but heightened scrutiny for laws targeting discrete and insular minorities or burdening fundamental rights. This framework became the foundation of modern constitutional adjudication.
NFIB v. Sebelius→
The Court upheld the Affordable Care Act's individual mandate as a valid exercise of the taxing power while striking down the mandatory Medicaid expansion. The case demonstrated that judicial review remains a potent constraint on federal power even in the modern era of broad congressional authority.
Current State of the Law
Judicial review is firmly entrenched as a core feature of American constitutionalism. The tiered scrutiny framework from Carolene Products governs the intensity of review: economic and social legislation receives deferential rational basis review, classifications based on sex or illegitimacy trigger intermediate scrutiny, and laws burdening fundamental rights or employing suspect classifications like race face strict scrutiny. The Court continues to exercise judicial review vigorously, having struck down significant federal legislation in recent terms on topics including campaign finance, voting rights, and agency authority.
The Roberts Court has been particularly active in reviewing the scope of federal agency power, culminating in decisions that limit agency deference and insist on clear congressional authorization for major policy decisions. This represents a significant shift in the practical operation of judicial review, as agencies promulgate the vast majority of binding federal rules.
Future Outlook
The future of judicial review is likely to be shaped by debates over judicial methodology and institutional legitimacy. The ongoing tension between originalism and living constitutionalism will determine how aggressively courts review legislation in areas like gun rights, environmental regulation, and administrative agency authority. The Court's recent willingness to overturn precedent and exercise robust review of agency action suggests a period of heightened judicial activism, though the ideological direction differs from the Lochner era.
Public confidence in the Court and the politicization of the confirmation process may ultimately constrain or reshape judicial review. Proposals for court reform -- including term limits, court expansion, and jurisdiction stripping -- reflect growing dissatisfaction with the current operation of judicial review and could alter the institutional framework within which the doctrine operates.