The Supreme Court: The Power of Judicial Review
What is judicial restraint?
An approach to judicial decision making which holds that a judge should defer to the legislative and executive branches and should put great stress on the precedent established in previous Court decisions.
What is judicial activism?
An approach to judicial decision making which holds that a judge should use his or her position to promote desirable social ends.
What does the due process (of law) mean?
Either: 1) substantive due process: the requirement that the substance of the law be administered fairly, reasonable and constitutionally; or 2) procedural due process: the requirement that the process of the law must be fair.
What are the origins of judicial review?
Judicial review is nowhere mentioned in the Constitution. One might say that the Court 'found' the power for itself in the 1803 case of Marbury v. Madison. This was the first time that the Supreme Court declared an act of Congress unconstitutional.
How, and how often, is the power of judicial review used?
Since 1803, the Supreme Court has used this power on hundreds of occasions - at times sparingly (periods of judicial restraint), but at other times far more frequently (periods of judicial activism). By using its power of judicial review, the Court can, in effect, update the meaning of the words of the Constitution, most of which were written over two centuries ago. Hence, they will decide what the phrase in Amendment XIII (written in 1791) forbidding 'cruel and unusual punishment' means today. Likewise, they will decide whether the Amendment I right of 'freedom of speech' applies to the internet. As former Chief Justice Charles Evans once remarked: "We are under a Constitution, but the Constitution is what the judges say it is". Strict constructionists tend to favour judicial restraint; loose constructionists tend to favour judicial activism - but note the word 'tend'.
What is judicial review?
The power of the Supreme Court to declare acts of Congress, or actions of the executive - or acts or actions of the state governments - unconstitutional, and thereby null and void.
Has the power of judicial review got any constitutional basis?
When the Constitution was written, there was a good deal of concern that the new federal government had been given too much power over the states and individuals. It was partly to allay those fears that the first 10 Amendments - known as the Bill of Rights - were added. But it was not until the passage of Amendment XIV in 1868 that the Constitution explicitly began to restrict the action that states could take against individual citizens. This was done through two provisions of this Amendment - the equal protection clause and the due process clause. The Court's use of the due process provision of Amendment XIV - preventing states from depriving persons of 'life, liberty or property without due process of law' - has enabled the Court to review and strike down a wide range of state legislation.
