What Is Judicial Review: How Courts Strike Down Laws and the Limits of the Power

What Judicial Review Is and Where It Comes From

Judicial review is the power of courts to assess the constitutionality of legislative acts and executive actions and to strike them down if they conflict with the constitution. In countries with strong judicial review, a court can render a law passed by the legislature — even one enacted by democratic majorities — legally void and unenforceable. This power places courts at the apex of the legal hierarchy, above parliaments and presidents on questions of constitutional meaning, and makes the judiciary a co-equal branch of government rather than merely an interpreter of statutes.

In the United States, judicial review was not explicitly stated in the Constitution but was established by the Supreme Court in Marbury v. Madison (1803), in Chief Justice John Marshall's famous declaration: "It is emphatically the province and duty of the Judicial Department to say what the law is." Marshall reasoned that since the Constitution is the supreme law of the land, and since courts must apply the law, courts must apply the Constitution over any conflicting statute. The logic seems simple, but it established a power that has shaped American governance ever since — and that was not inevitable. In the UK, Parliament remains sovereign, and courts cannot strike down primary legislation; they can only declare that a law is "incompatible" with human rights standards, leaving Parliament to respond as it chooses.

The United States model of "decentralized" judicial review — in which any court can apply constitutional review, with the Supreme Court as the final arbiter — contrasts with the "centralized" or "Kelsenian" model adopted by most European countries after World War II. In the German, Austrian, French, and Spanish models (and many others), constitutional review is concentrated in a specialized Constitutional Court, separate from the ordinary court system, that alone has the power to invalidate laws. The ordinary judiciary applies statutes and refers constitutional questions to the Constitutional Court. This design reflects a concern about excessive judicial power and a desire to maintain clearer separation between constitutional and ordinary law.

The Counter-Majoritarian Difficulty

Judicial review creates what Alexander Bickel in 1962 called the "counter-majoritarian difficulty": unelected judges with lifetime tenure can override the decisions of elected representatives. In a democracy premised on popular sovereignty — the idea that legitimate authority derives from the consent of the governed — this seems paradoxical. How can the rule of a handful of appointed judges be reconciled with democratic self-governance?

Defenders of judicial review offer several responses. The most fundamental is that democracy is not simply majority rule but limited government: a democracy must protect certain rights and procedural norms that majorities cannot override without undermining the democratic system itself. Judicial review protects the rights of minorities against majoritarian oppression, enforces the structural constraints (separation of powers, federalism) that keep democracy functioning, and guards against the "majority faction" problem identified by James Madison in Federalist No. 10. Without judicial review, rights guaranteed on paper could be legislated away whenever a sufficiently large majority wished to do so.

Critics, particularly those associated with democratic theory and critical legal studies, argue that this defense proves too much. Courts are not politically neutral — judges have political preferences, legal philosophies, and class backgrounds that systematically shape their rulings. The Warren Court's liberal decisions (Brown v. Board of Education, Baker v. Carr, Gideon v. Wainwright) and the Roberts Court's conservative decisions (Citizens United v. FEC, Shelby County v. Holder, Dobbs v. Jackson Women's Health Organization) illustrate that judicial review often reflects the values of appointing presidents and the political coalitions that confirm justices, not some neutral constitutional meaning. This makes it not a check on politics but a continuation of politics through judicial means — with the added disadvantage that the political actors (judges) are insulated from electoral accountability.

Constitutional Entrenchment and Interpretation

Judicial review's power depends heavily on how the constitution is interpreted. Constitutions can be interpreted narrowly (limiting courts to the explicit text and historical meaning of constitutional provisions) or broadly (treating constitutional principles as living frameworks to be applied to circumstances the framers never anticipated). The debate between "originalism" and "living constitutionalism" in American constitutional law is fundamentally a debate about the legitimate scope of judicial review.

Originalists argue that judges should interpret the Constitution according to the original public meaning of the text at the time of ratification. This approach constrains judges — they cannot discover new rights or principles not present in the founding-era text — and is defended as democratically legitimate: the Constitution was ratified by the people, and courts should apply what the people actually ratified, not what judges think would be desirable today. Justice Antonin Scalia was the most prominent modern advocate of originalism; his opinions in cases like District of Columbia v. Heller (Second Amendment right to bear arms) exemplify the approach.

Living constitutionalists argue that the Constitution's broad principles — liberty, equal protection, due process — must be interpreted in light of evolving social understandings and circumstances. The framers could not have anticipated telecommunications, nuclear weapons, or the administrative state; applying their specific understandings mechanically to these contexts produces absurd results. More fundamentally, the Constitution's deepest values — the rule of law, individual dignity, equal citizenship — are better served by thoughtful application to modern conditions than by rigid historical constraint. Justice William Brennan, a leading living constitutionalist, argued that the Constitution's provisions must be read as an expression of fundamental human rights that each generation must apply afresh.

Landmark Cases: The Power in Practice

The history of judicial review is largely a history of landmark cases that reshaped American law and governance. Dred Scott v. Sandford (1857), in which the Supreme Court struck down the Missouri Compromise and declared that enslaved people had no constitutional rights, is frequently cited as the most catastrophic exercise of judicial review — one that accelerated the Civil War. The Lochner era (1905–1937) saw the Court strike down dozens of labor regulations as violations of "liberty of contract," an implied constitutional right the Court identified without textual support, shielding corporate power from progressive reform. These historical episodes are central to ongoing debates about judicial review's proper scope, because they demonstrate that the power can be used not just to protect rights but to entrench injustice.

Brown v. Board of Education (1954), which unanimously struck down racial segregation in public schools, is the paradigmatic example of judicial review used to protect minority rights against majoritarian oppression. Many Southern states would not have desegregated voluntarily; Congress, dominated by the Senate's Southern Democrats with their filibuster power, was incapable of acting. The Court's intervention changed the constitutional baseline and initiated (if slowly and incompletely) a transformation in American race relations that democratic politics alone could not have produced. Critics note that the Court's enforcement was limited: it required "all deliberate speed" but did not compel rapid compliance, and actual desegregation required further legislative and executive action over the following two decades.

Roe v. Wade (1973), which recognized a constitutional right to abortion, and its 2022 reversal in Dobbs v. Jackson Women's Health Organization, illustrates how judicial review can be used to both recognize and withdraw rights over time as Court composition changes. The Dobbs majority argued that Roe was originally wrongly decided — reading a right into the Constitution that was neither textually present nor deeply rooted in history. The Roe majority had read substantive due process to protect privacy decisions. The conflict illustrates that even the basic framework for constitutional interpretation is contested, and that the "meaning" of the Constitution is not fixed but is continuously contested through judicial appointments, legal arguments, and political mobilization.

Comparative Models: Different Designs, Different Outcomes

Germany's Federal Constitutional Court (Bundesverfassungsgericht), established in 1951, is widely regarded as one of the most influential and effective constitutional courts in the world. It can review legislation before and after enactment, can be petitioned by individuals who have exhausted ordinary legal remedies, and has developed a sophisticated jurisprudence of proportionality analysis — requiring that any limitation on constitutional rights be proportionate to the legitimate aim pursued. Its decisions have shaped German constitutional law on everything from abortion (where it reached different conclusions from the US Supreme Court, finding that the state has a duty to protect developing life) to digital privacy to European integration.

France uses a Council of State (Conseil Constitutionnel) that reviews legislation before promulgation but traditionally could not be petitioned by individuals after enactment. A 2008 constitutional reform created a "priority preliminary ruling on constitutionality" (QPC) procedure allowing individuals to challenge the constitutionality of laws in ongoing litigation — moving the system partially toward the Kelsenian model while preserving its traditionally preventive focus. The UK's Human Rights Act 1998 incorporated the European Convention on Human Rights into domestic law but explicitly preserved parliamentary sovereignty: courts can declare legislation incompatible with human rights, but Parliament retains the final word and is not obligated to change incompatible laws.

India's Supreme Court has developed an unusually expansive version of judicial review, including the doctrine of the "basic structure" of the constitution, which holds that even formal constitutional amendments can be struck down if they violate the constitution's fundamental features. This doctrine, established in Kesavananda Bharati v. State of Kerala (1973), was developed in response to attempts by Indira Gandhi's government to amend the constitution to nullify Supreme Court decisions protecting property rights. It places the Court above even the constitutional amendment process on matters the Court designates as "basic" — a remarkable assertion of judicial supremacy that has no direct parallel in the United States or European systems.

Court Packing and Judicial Independence

The political character of judicial review means that the composition of courts is itself intensely political. Supreme Court appointments in the United States have become high-stakes partisan battles, with ideological positioning, filibuster threats, rushed hearings, and unprecedented Senate maneuvers (Merrick Garland's 2016 non-hearing; Amy Coney Barrett's 2020 confirmation weeks before an election). Presidents explicitly select justices whose judicial philosophies align with their political goals; confirmation hearings have evolved into theater in which nominees refuse to discuss any legal issue that might come before the Court.

Court packing — expanding the size of the Supreme Court to appoint additional justices aligned with the incumbent administration — has periodically been proposed as a corrective to what critics view as illegitimate conservative capture of the Court. Franklin Roosevelt's 1937 court-packing plan, widely condemned as an assault on judicial independence, ultimately failed, but the threat may have contributed to the "switch in time that saved nine" — the Court's abrupt shift to upholding New Deal legislation. Contemporary Democrats proposed Court expansion after the Dobbs and Bruen decisions, but the proposal has not advanced, partly due to concerns that it would trigger an escalating cycle of counter-packing by future administrations.

The independence of constitutional courts from political pressure is a precondition for effective judicial review, and it is under threat in multiple countries. Hungary's Fidesz government packed the Constitutional Court with loyalists, enabling constitutional amendments that eviscerated judicial constraints on executive power. Poland's Law and Justice party engaged in a prolonged constitutional crisis over the composition of the Constitutional Tribunal, triggering EU rule-of-law proceedings. In both cases, the tool of judicial review became not a constraint on majoritarian power but an instrument of it. This experience underscores that judicial review is only as strong as the political norm of respecting court decisions and the institutional independence that makes courts genuinely independent actors rather than extensions of the ruling political coalition.