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Judicial Review

6 min read

Part of The Constitution and the courts.

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Every episode (2)

Who argued it

Keith Whittington · Ilya Somin

Constitutional Law · Separation of Powers · Supreme Court · Federalism · Court Packing

Background

Definition and constitutional basis

Judicial review is the power of a court to determine that a law passed by Congress or a state legislature, or sometimes an executive order or other government policy, is unconstitutional, and therefore invalid and unenforceable. Ilya Somin, a professor of law at George Mason University, described it in those terms, adding that it protects against abuse by the majority, by influential interest groups that are not majorities, and by government officials pursuing their own agendas How to Create a Legitimacy Crisis (2019).

Keith Whittington, a Princeton professor, described judicial review as the practice of courts in ordinary cases where laws are challenged as contrary to the Constitution, with the court claiming authority to decide whether the laws are consistent with it and to refuse to apply them if they are not. He noted that the power is not explicitly granted in the Constitution, though it was quickly understood to be an implication of the constitutional design, and that the term “judicial review” is itself modern — coined at the turn of the 20th century by Edward Corwin, a constitutional historian and one of Whittington’s predecessors at Princeton Reviewing Judicial Review (2020).

The debate over legitimacy and democracy

Bob Zadek framed judicial review as the institution that guards the Constitution against unconstitutional acts of government, warning that without it the public is vulnerable and that court packing would weaken it. Somin agreed that judicial review is a valuable safeguard but disputed that its absence means tyranny, pointing to liberal democracies such as New Zealand and the United Kingdom, which for most of their history lacked judicial review yet remained relatively free. He added that in countries that have strayed toward authoritarianism, including Venezuela and Turkey, judicial review was among the institutions undermined, and court packing was part of the process How to Create a Legitimacy Crisis (2019).

Whittington said the power has long been controversial for raising the question of whether courts are set up above the other branches and even above the people. He noted classic books with titles like Government by Judiciary complaining that the arrangement produces government run by courts, and that before the language of judicial review settled, terms such as “judicial veto,” “judicial nullification of laws,” and “judicial supremacy” emphasized that the court was exercising a kind of legislative power of repealing laws. Advocates respond that courts are not repealing laws but refusing to apply them, and only when they conflict with the Constitution adopted by the people Reviewing Judicial Review (2020).

Zadek raised the tension with the idea of three co-equal branches, asking whether giving the Supreme Court the last word belies that concept. Whittington replied that it certainly raises questions. Zadek also cited Alexander Hamilton’s observation that the court is the weakest branch because it has no army, no police force, and no power of the purse Reviewing Judicial Review (2020).

Court packing and the Bill of Rights

Somin said court packing would not make judicial review disappear entirely but would make it much weaker, since a coalition controlling both houses of Congress and the presidency could ensure no effective review of policies it supports and considers important. Review of minor policies, and of some state laws, might survive. He added that the mere threat of packing could keep justices from rocking the boat How to Create a Legitimacy Crisis (2019).

On the Bill of Rights, Somin said its protections would certainly be diminished, since some rights have historically been protected more effectively through judicial review than political majorities would protect them. He noted that public opinion and the norms of political elites might serve as safeguards, but that norms can be eroded, and cited Donald Trump as an example of norm erosion. He observed an irony: some who rightly worry about Trump undermining norms also support court packing, even though a situation in which political leaders can undermine norms is one where, absent judicial review, they could undermine rights-protecting norms How to Create a Legitimacy Crisis (2019).

Asked whether anything good could be said for court packing, Somin said nothing sufficient to outweigh the evil, but noted that people who oppose judicial review in general as undemocratic should welcome it. He described Democrats who support packing as a special case in response to the blocking of Merrick Garland’s nomination in 2016, which enabled Trump to nominate Neil Gorsuch. Somin called that reasoning naive, predicting escalation: Republicans would not accept that they did anything wrong and would pack the court later in response How to Create a Legitimacy Crisis (2019).

Judicial review at the state level

In a discussion of gerrymandering, Nick Seabrook said state supreme courts may exercise checks and balances over legislatures and strike down extreme partisan gerrymanders as violations of state constitutions. He cited New York, where Democrats in the legislature tried to gerrymander congressional districts and the state judiciary struck down the plan and replaced it with a map he described as considerably more fair. He noted, however, that such external shocks do not always happen: a state may lack an opposition governor at redistricting time, a state supreme court willing to exercise judicial review, or the initiative option used in Michigan Who’s Electing Whom? Politicians or the Voters? (2022).

Across episodes

The 2019 episode treats judicial review as a contested national safeguard threatened by court packing, with Somin and Zadek disagreeing only in degree about how essential it is. The 2020 episode shifts to definition and history, with Whittington explaining that the power is not explicit in the Constitution and that the term itself was coined around 1900. The 2022 episode shows judicial review operating at the state level against gerrymanders. The episodes show no development of a single argument across episodes so much as three distinct treatments.

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