Judicial review

                Judicial review enables the judicial branch of government to rule that an Act of Congress or the actions of the executive branch are in violation of the Constitution. To use the Latin term, a politician is said to have acted ultra vires (beyond their powers). Judicial review can even be applied to the President himself. Back in the late-1990s, Bill Clinton was ruled to have exceeded his constitutionally-defined powers in relation to the line-item veto. Since that particular ruling, no President has been able to use the line-item veto. Judicial review also enables the courts to check for consistency between an administrative regulation and existing laws. Without the ability to exercise judicial review, the independence of the Supreme Court would be fatally compromised and the rule of law simply could not exist. In a truly democratic society, it is imperative that the judicial branch of government has the ability to check the power of the other two branches.

                The most significant power held by the Supreme Court is that of judicial review, and the SCOTUS was the first judicial bench in the world to enact a judicial review. In the case of Marbury v. Madison (1803), the Supreme Court ruled that federal courts have a duty to review the constitutionality of congressional acts. In doing so, they can declare said actions “null and void” if they in any way contravene the Constitution of the United States. It should perhaps be noted here that the Constitution does not specify such a power to the Supreme Court. As such, judicial review is an inferred power rather than an enumerated power.

                Judicial review both empowers the judicial branch of government and ensures that power exercised by the legislative and executive branch remains within the boundaries of the Constitution. In other words, judicial review bears relevance towards our understanding of judicial independence and has resonance towards the broader system of checks and balances within the American system of governance. Over 1,600 Acts of Congress have been ruled unconstitutional and thereby struck down on the basis of judicial review.

                Thus far, one might reasonably assume that the power of judicial review is a considerable one. However, this must be weighed against the ability of the legislative branch to pass a subsequent piece of legislation that manages to secure similar aims to the action that was initially struck down. It should also be recognized that the Supreme Court has absolutely no power of enforcement. Once again, one is reminded that the judicial branch of government is the weakest of the lot. As an unelected body, this is surely to be expected. Indeed, it is the norm throughout international relations for the judiciary to be weaker than either the legislature or the executive.

                Amongst the founding fathers, James Madison took the view that interpretation of the Constitution should be entrusted to an independent judiciary. Any other alternative would risk undermining the principles of the Constitution (such as limited government). Alexander Hamilton added that judicial review ensures that the will of the people would assuage the will of the legislature, and thereby ensure that the flame of liberty would remain alight within the new Republic. Yet despite these very worthy intentions, it is entirely reasonable to criticize the actual consequences of judicial review. For instance, it might be argued that judicial review enables judges to impose their opinions without any proper democratic oversight or accountability. Members of the judicial bench could even be offered bribes by those seeking to corrupt the whole process. That said; the Supreme Court has been relatively free from scandal or corruption by international standards. A member of the Supreme Court can also be impeached from their post if they misused judicial review, which thereby acts as a notable deterrent.

Secondly, it is worth noting that the practice of judicial review is itself unconstitutional. Judicial review was not specified at all in the original document. Whereas many of the founding fathers were keen to ensure an independent judiciary, it might plausibly be argued that they didn't wish for the courts to impose judicial review because that might lead to the abuse of power by members of the bench. The tenth amendment would seem to imply that the states should interpret the Constitution. If so, then the Supreme Court has itself exceeded its constitutionally-defined powers. This is one of the ironies of the American system of governance.