The United States Supreme Court is the highest court in the country. The Supreme Court is able to act a check and balance against the legislative and administrative arms of government by ruling on cases brought before them on the constitutionality of a law used in that particular case. The Supreme Court is able to do this through the power of Judicial Review. What is Judicial Review, how was it developed, and what actions can be used by opposing parties to reverse the rulings of the Supreme Court?
Judicial Review is the United States Supreme Court’s power to review the constitutionality of a decision made by the United States Government. Any sort of legislation, as well as regulations and diplomatic legislation (such as treaties) is subject to Judicial Review. When the Supreme Court uses Judicial Review, they collectively debate cases brought before them, and decide if the constitution has any implicit or implied language allowing a certain law. Essentially, Judicial Review is the power to check actions of the government for their constitutionality.
Judicial Review originated in 1803 after the famous case of Marbury v. Madison. The case began after a dispute over the delivery of a commission to William Marbury. Marbury brought his case before the Supreme Court, asking for them to force Secretary of State Madison to give him the commission papers. The court ruled that the law Marbury invoked was unconstitutional, and argued that their power to rule a law as unconstitutional is not specifically stated, but is implied by the constitution. This set the precedent for the Supreme Court’s power of Judicial Review.
One way to get around a law being struck down by judicial review is to change the constitution. Under Article V of the United States constitution, Congress can amend the constitution after meeting a quota of required votes in both the House of Representatives and the Senate. These amendments are tough to pass, but once they are, they allow the Congress to pass laws that the Supreme Court might have once struck down as unconstitutional.
In the case of Texas v. Johnson (1989), the ruling that a law is unconstitutional, and the aftermath thereof is greatly exemplified. The case came about after a man named Gregory Johnson burned an American flag at a demonstration. He was arrested and convicted of desecrating a dignified object. The Texas Court of Criminal Appeals overturned his conviction on the grounds that it was unconstitutional. Unsatisfied with this, the state of Texas took the case to the Supreme Court. The Supreme Court used their powers to interpret the constitution in this case, in which they interpreted the right to free speech as meaning the right to spoken and also physical or symbolic speech. This meant that the act of flag desecration was a constitutionally protected action. Many states at the time had laws against flag desecration, and because of this law, the laws pertaining to flag desecration were all rendered null.
In order to have the power to enforce laws banning flag desecration, the Congress attempted to amend the constitution to state clearly that flag desecration is an illegal action. The Congress was never able to get the votes needed to pass the amendment through the Senate. If they had passed the amendment, the ruling in Texas V. Johnson (1989) would have been rendered obsolete, as the banning of flag desecration would have been clearly stated within the constitution. In this way, we see Judicial Review being used to its full extent here. A case is brought before the Supreme Court, they make their ruling, the law is deemed unconstitutional, and lawmakers go back to the drawing board to try and pass an amendment.
There are those who might think that the Supreme Court should not use Judicial Review, or that the Supreme Court should try to actively take steps to become a part of the legislative process. The Supreme Court is one of three branches of the United States Federal Government. The other two branches are the legislative body (Congress) and the administrative body (which includes the President, his cabinet, and his other advisors). If the Supreme Court were to lose the power of Judicial Review, the Supreme Court would be rendered ineffective. The Supreme Court needs the power of Judicial Review to effectively act as a check and balance to the legislative body and the administrative body, just as the administrative (through the power of presidential pardons) and legislative (through the ability of amending the constitution) branches act as a check and balance to the judicial branch.
In conclusion, the power of Judicial Review is what allows the Supreme Court to wield enough power to act as an effective balance to the other three branches of government. Judicial Review is simply the power to determine whether a law is constitutional or not. When the Supreme Court does decide that a law is unconstitutional, the Congress has the option of altering the constitution through “amendments” in order to make the unconstitutional law constitutional. While amendments may sound like a simple thing, the process is long and the required votes for a constitutional amendment are understandably strict. In essence, the Supreme Court has a great deal of power over the laws in the United States, but their powers are not unlimited, nor are their decisions irreversible.