The Supreme Court and judicial review. Where did it come from? How did it get here?

Judicial review, Marbury v. Madison -

The Supreme Court and judicial review. Where did it come from? How did it get here?

"It is emphatically the province and duty of the judicial department to say what the law is." (Chief Justice John Marshall, in Marbury v. Madison, 1803)

The Supreme Court’s check of the other branches of government is the power of judicial review. This power of review did not exist until 1803 as the result of fallout and political machination by Supreme Court Justice John Marshall’s opinion during the ruling of Marbury v. Madison. This opinion set in motion that the Supreme Court had the power and the duty to determine whether or not laws passed by Congress violated the Constitution of the United States. This ruling did two dramatic things, it cemented the power of the Supreme Court in the process of legislation along with their other two branches of government, and strengthened the federal government’s central power (Mark Rosenburg, Thinkwell’s American Government: Marbury v. Madison, 2013).

Supreme Court Justice John Marshall understood the court to have this power for three reasons. 1) The Constitution controls any legislative act repugnant to it. Meaning if the Constitution can simply be ignored by statutory law passed by Congress, what is its purpose? 2) It is the role of the judicial department to say what the law is. Understood to mean that why else would there be a judicial department, if Congress can simply pass laws without scrutiny? Leaving this amount of power for governance in the hands of Congress subverts the Constitution. 3) Supreme Court Justices take an oath to uphold the Constitution. Why else take an oath unless they are going to fulfill it? (Mark Rosenburg, Thinkwell’s American Government: Marbury v. Madison, 2013).

These reasons were set forth as arguments as a result of the case Marbury v. Madison in 1803. The history that generated this case is mired in the political horn-locking of the era between the Federalists and the Republicans. In short, during Hamilton’s lame duck session as President he created, nominated, appointed and assigned jurisdictional control of several different levels and layers for the judicial branch of the government. One of the intended appointees was a fellow named William Marbury who for some reason did not receive his appointment when Hamilton’s successor Thomas Jefferson (who didn’t like Federalists very much) decided to not appoint him by not delivering his letter. This of course upset Marbury so he filed a lawsuit against President Madison. 

A recent use of the power of judicial review by the court was during the Supreme Court’s decision during its hearing of the Constitutionality of the Affordable HealthCare Ac. Arguments in the opposition claimed that the Federal government could not impose upon citizens the need to purchase health insurance. The Federal government argued that it was not a requirement to purchase health insurance but instead a tax and that it fell within the bounds of the Commerce Clause found in the United States Constitution (Article 1, Section 8, Clause 3) . (Florida, Et Al., Petitioners v. Dep't of Health & Human Services, 2011). The Supreme Court ruled in favor of the Act, and found that the US Government can tax its citizens for the purpose of health care. The moral and legal ramifications of this decision are significant, and we have not even begun to see the effects of this in our time. 

The question is asked: does the Supreme Court abuse this power? Judicial review is not something the Court is able to call forth like a plague of frogs on any and every act passed by Congress. Judicial review is something that falls in the Supreme Court’s lap when there are challenges or complaints with statutory laws passed by Congress. My personal issue arises when certain Supreme Court Justices are appointed because of their political ideals and the particular party that is in office during that time uses their influence to place them there for the rest of eternity. This however is not really who abuses the power. The largest abuse of judicial review comes from the Executive and Legislative branch. It appears to me that with recent laws that are passed through Congress and the President the Constitutionally legal considerations of those acts are never contemplated by the hundreds of individuals in those positions. Instead they seem to slap some pork together and see what sticks or gets past the Court, and whatever does sets precedent and allows the rules of the game to be changed. All Federal officials take an oath to uphold and defend the Constitution of the United States, if the 535 members of Congress took that oath seriously we would not need a Judicial branch of the government.


Marbury v. Madison, 5 U.S. (Cranch 1) 137 (1803)

Mark Rosenberg, Thinkwells’s American Government: Marbury v. Madison, Youtube, found at (last visited Sept. 11, 2013).

Judiciary Act of 1789, § 13

Florida, Et Al., Petitioners v. Dep't of Health & Human Services, Et Al., S. Ct. (11th Cir. 2011).

United States Constitution (Article I, Section 8, Clause 3)

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