Definition and constitutional basis
Judicial review is the power of a court to determine whether a law passed by Congress or a state legislature—or sometimes an executive order or other government policy—is unconstitutional, and if so, to refuse to apply it. Ilya Somin, a professor of law at George Mason University, described it as the power to say that a law “violates some provision of the Constitution and therefore it’s invalid and can’t be enforced against people.” How to Create a Legitimacy Crisis (2019)
Keith Whittington, a Princeton professor, offered a similar definition: judicial review is the practice of courts in ordinary cases, where laws are challenged as contrary to the Constitution, claiming authority to determine whether those laws are consistent with the Constitution and to refuse to apply them if they are not. Reviewing Judicial Review (2020)
Whittington noted that this power is not explicitly granted in the Constitution, though it was quickly understood to be an implication of the way the Constitution was designed. The language of “judicial review” itself is modern: Whittington said the term was coined by Edward Corwin, a constitutional historian and one of Whittington’s predecessors at Princeton, around the turn of the 20th century. Before that, terms like “judicial veto,” “judicial nullification of laws,” and “judicial supremacy” were used to describe the court’s exercise of this power. Reviewing Judicial Review (2020)
The tension with democratic government
Bob Zadek raised the question of how judicial review fits with the concept of three co-equal branches of government. If the judicial branch can have the final word that a statute supported by a majority of Congress and signed by the president does not pass constitutional muster, does that belie the co-equal concept? Whittington acknowledged that this has been a controversial power for exactly that reason—whether it sets up the courts as above the other branches and perhaps above the people themselves. He noted classic books with titles like Government by Judiciary complaining that judicial review creates a government run by courts rather than a democracy. Reviewing Judicial Review (2020)
Whittington explained that the court and advocates of judicial power emphasize that courts are not repealing laws but refusing to apply them, and only when they conflict with the Constitution. The further claim is that the Constitution was adopted by the people and is the most fundamental law, so courts are merely ensuring that legislatures do not violate that more fundamental law. Still, Whittington said, this creates tension between the court and other institutions and raises questions about which is more powerful within the political system. Reviewing Judicial Review (2020)
Zadek also invoked Alexander Hamilton’s observation that the court is the weakest branch of government because it has no army, no police force, and no power of the purse—it can only spend money given to it by the other branches. Reviewing Judicial Review (2020)
Judicial review as a safeguard
Somin described judicial review as a protection against the power of the majority, which can be abused, but also against influential interest groups that are not majorities and against government officials who may want to violate the Constitution to pursue their own agendas. How to Create a Legitimacy Crisis (2019)
Zadek framed judicial review as essential: without it, he said, there is no institution that serves as the guardian of the Constitution to protect against unconstitutional acts of government. He argued that without judicial review, the decisions of the court become questioned as political rather than legal judgments. Somin did not go as far. He said it would not be true that without judicial review there would be no protection at all, but there would be much less. He pointed to separation of powers, public opinion, and the examples of liberal democracies like New Zealand and the United Kingdom, which for most of their history have not had judicial review but are still relatively free societies by international standards. How to Create a Legitimacy Crisis (2019)
Somin nevertheless credited judicial review with protecting freedom of speech and religion better than the political process has historically, protecting against racial and ethnic discrimination more than the political process has, and at some periods constraining the growth of the federal government. He also noted that in countries that have strayed from democracy to authoritarianism—including Venezuela and Turkey—one of the institutions undermined in the process was judicial review, and court packing was part of that process. How to Create a Legitimacy Crisis (2019)
Court packing and the weakening of judicial review
Somin said that if a political coalition could pack the court whenever it controlled both houses of Congress and the presidency, it would ensure there would be no effective judicial review of policies that coalition supports and considers important. There might still be effective judicial review of minor policies and some state laws, but judicial review would be far weaker. He added that in some cases the mere threat of court packing could keep current justices from rocking the boat. How to Create a Legitimacy Crisis (2019)
Zadek asked whether there is a direct line between court packing and diminished effectiveness of the Bill of Rights. Somin agreed it would be diminished, noting that historically some rights have been protected more effectively through judicial review than political majorities would protect them on their own. He mentioned that public opinion and the political norms of the political elite might serve as safeguards, but those norms can be eroded, and he cited Donald Trump as an example of someone who has succeeded in eroding norms. How to Create a Legitimacy Crisis (2019)
Somin also addressed the argument, attributed to some Democrats, that court packing is justified as a special case because Republicans blocked the nomination of Merrick Garland in 2016, enabling Trump to nominate Neil Gorsuch. Somin called this view at least naive, because if Democrats pack the court in response to Garland, Republicans are unlikely to accept that as a justified response and will escalate further. He said escalation by one side is likely to generate further escalation by the other. How to Create a Legitimacy Crisis (2019)
The debate over public opinion and constitutional norms
Zadek expressed less faith than Somin in the good judgment of the majority. He argued that when legislation benefits the majority at the expense of a minority and is unconstitutional, the minority victims would be too few to oppose it, and once majority rule becomes more relevant than the Constitution, the Constitution does not get into the game. How to Create a Legitimacy Crisis (2019)
Somin responded that he is rarely accused of being overly optimistic about democratic majorities, having written a book called Democracy and Political Ignorance about how voter ignorance leads to harmful policies. He agreed that majorities can and have done horrible things, but said majorities are influenced by norms and principles, so there are some limits they might observe—just not as tight as desirable. He also said the data show that narrow self-interest is not the main motivation of people when they vote on most issues; the real danger is that majorities can do harmful things out of ignorance, bias, or bad values, and he cited communism and fascism as examples of harmful ideologies that drove dangerous policies. How to Create a Legitimacy Crisis (2019)
Zadek said there is little history of the public taking a collective position against its narrow self-interest because it was the correct constitutional position, and that people are not informed enough about their constitutional rights and may not value them. He said he prefers the parchment with meaning—the Constitution—as the safeguard, not reliance on intelligent voters. Somin said the disagreement is one of degree: absent judicial review, democratic majorities would do more bad things, but there are some constraints, and the history of Britain and New Zealand shows the public places some value on safeguards against government power. He said judicial review is absolutely a valuable safeguard, perhaps slightly less essential than Zadek says, but both agree court packing would be a very serious threat to it. How to Create a Legitimacy Crisis (2019)
Judicial review in the context of gerrymandering
In a later episode on gerrymandering, Nick Seabrook discussed how state courts can exercise judicial review over legislative redistricting. He noted that a state Supreme Court may exercise checks and balances over the legislature and strike down an extreme partisan gerrymander as a violation of the state constitution. He cited New York, where Democrats in the legislature tried to gerrymander congressional districts, and the New York judiciary struck down the plan and replaced it with a new map that was considerably more fair. Midterm Elections Special: The Surprising History of Gerrymandering (2022)
Seabrook said that external shocks to entrenched gerrymanders do not always happen: you do not always get a governor from the opposition party at the time of redistricting, you do not always have a state Supreme Court willing to exercise judicial review, and you do not always have the option of citizens putting initiatives on the ballot, as happened in Michigan. He expressed concern that in states like Wisconsin, gerrymandering can be used to install a political party into permanent single-party rule in the legislature, and once that happens, absent one of those external shocks, it is extremely difficult to break that control. Midterm Elections Special: The Surprising History of Gerrymandering (2022)
Across episodes
The 2019 episode with Ilya Somin and the 2020 episode with Keith Whittington both address the definition of judicial review and its tension with democratic government, but they approach the topic differently: Somin focuses on judicial review as a safeguard against majority abuse and the threat posed by court packing, while Whittington focuses on the historical and theoretical foundations of the power and the controversy over whether it makes courts superior to other branches. The 2022 episode with Nick Seabrook touches on judicial review only in the context of state courts checking partisan gerrymanders, showing a different application of the concept. The excerpts do not show a direct development or change in the argument across episodes; each guest addresses the topic from a distinct angle.
What the sources do not cover
The excerpts do not state the name of any case in which the Supreme Court exercised judicial review, nor do they identify which amendment or constitutional provision was at issue in any specific instance. They do not provide the founding date of judicial review or the name of the case that established it. They also do not cover the details of how judicial review operates outside the American context beyond brief mentions of Britain, New Zealand, Venezuela, and Turkey.