Judicial Review Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

Judicial review is the capacity of a court to review and, if necessary, reject the laws or directives of the legislative or executive branch. In administrative law, judicial review simply refers to court oversight of government actions, and in this usage, judicial review is a necessary component of the rule of law (the government is restrained by the laws in place). In constitutional law, judicial review refers to the power of the courts to strike down the laws in place as violations of the more basic principles enshrined in the Constitution and its history of interpretation.

Judicial review in the constitutional usage is essentially an American contribution to the art of government. Within the constitutional usage, judicial review can be used in a narrow or broad sense. In the narrow sense, judicial review is essentially collateral—that is, it does not consider the merits of the impound decisions but examines only its constitutionality or basic legality. In the wider sense, it includes even appeals on the merits of a decision taken either by the executive or the legislature.

Origins And Purpose

The origin of judicial review can be traced to the Cokian dictum of the common law (named after Lord Chief Justice of England Edward Coke), under which there are certain principles, which are considered fundamental and higher, and they cannot be altered even by the parliament. With the provision of a written constitution, a new basis for judicial review was created. Judicial review is not explicitly provided for in the U.S. Constitution. The Supreme Court was established by the Constitution and subsequent Judicial Act in 1789, but this court’s power to invalidate laws or other government actions was only declared in Marbury v. Madison (1803), in the decision written by Chief Justice John Marshall.

The distinction between a legislative act and the constitution is basic in any type of written Constitution. It is the very source of judicial review, whether expressed explicitly or inferred logically. Judicial review can be seen as an outcome of the supremacy of a constitution over legislative acts. Both the legislature and the judiciary derive their respective authority from the Constitution. Under judicial review, it is the duty of the judges to pronounce upon the constitutionality of the legislative acts. Without judicial review, there would be no court of appeals for citizens who consider a government’s action, while currently the law of the land, to be in violation of the principles on which the country is founded.

The generality of some clauses of the Constitution (for instance, “equal protection”) allows the judiciary in the United States to invalidate a law passed by the Congress on the basis of inherent goodness or badness of the law. This wider application of judicial review is highly contested in political theory, usually couched in terms of judicial activism and judicial restraint. In practice, as undoing a high court decision is extremely difficult, much depends on the creative interpretation of the wisdom of the legislative policy expressed through due process of law. Because the U.S. Constitution is very brief with a rigid amendment procedure, many see the judiciary as playing a crucial role in adapting the Constitution to the changing circumstances. A similar phenomenon occurs in India, although the words due process of law were replaced with procedure established by law (drawn from Japan).

Under the guise of the due process clause, supreme or constitutional courts have succeeded in striking down congressional laws passed by the legislatures as unjust, unreasonable, and violative of the supreme law of the land dedicated to preserving and protecting the ideal of constitutionalism. The role of the judiciary is thus not confined merely to the annulment of legislative discretion but also interpretation and application of legal rules to social facts. Former U.S. Supreme Court justice Benjamin Cardozo argued that the chief worth of judicial review lies in: “Making vocal and audible the ideals that might otherwise be silenced, in giving them continuity of life and of expression, in guiding and directing choice within the limits where choice ranges” (Cardozo, 94). “It is very well said that judicial review affirms as well as negates. It exercises both ‘power releasing’ and ‘power breaking’ function. It helps in accelerating and quickening the movement and expediting the realization of social conscience” (Cardozo, quoted in Mason, 1979, 244–245).

From Judicial Review To Judicialization

It seems there are times when judges cannot escape the duty to judge, to choose between competing social values or make a choice amounting to indulging into politics. It has led to some problems and controversies. In the late twentieth century, the U.S. Supreme Court played a proactive role as the fallout of the judicialization of politics in general. Judicialization implies a process whereby the judiciary engages in administrative supervision. It also implies the proactive role played by the judiciary in social engineering by laying the foundations for desirable behavior on the part of the public institutions and the masses alike.

According to proponents of this trend, the judiciary is in a better position to resolve the contentious issues in pluralistic and modern complex societies as the judges appear to be apolitical, neutral, and fair to the vast majority. Moreover, they can give equal attention to all the aggrieved parties and take a nonpartisan and long-term perspective, a feat that cannot be performed by the legislative or the executive. Under this interpretation, the judges not only adjudicate between the two litigants in whom the “better boxer” wins the game but also take side with the just party. They can do so because they are capable of taking independent decisions and autonomous actions, whereas the executive and the legislative branches are found to be too fragmented to do so. Thus, judicial review can help in providing logical and rational solutions in an atmosphere charged with partisan politics and interest group lobbying.

The appropriateness of the trend of judicialization has been called into question in legal studies at least since Alexander Bickel’s 1962 work The Least Dangerous Branch, wherein he coined the term countermajoritarian difficulty to describe the removal of important societal judgments from democratic, majoritarian processes. One response from the court itself has been to argue for its role in protecting “discrete and insular minorities” (United States v. Carolene Products, 1938, footnote 4) against majority-backed laws that may make sense in themselves but prove onerous for an unfavored group. Moreover, many political scientists since Bickel have argued that, in fact, judicial power is “politically constructed.” It is less insulated from popular pressure and reprisals from political actors than previously thought, and therefore represents not a frustration of democratic processes, but a different outlet for them.

Conclusion

Whatever the outcome of the current debates in political science, it is clear that the genius of any constitution lies not only in static meaning but also in the adaptability of its great principles in the light of current problems and needs, and judicial review provides the primary means of extending those principles in many countries, especially the United States, in the early twenty-first century.

Bibliography:

Bickel, Alexander M. The Least Dangerous Branch: The Supreme Court at the Bar of Politics. Indianapolis: Bobbs-Merrill, 1962.
Cardozo, Benjamin N. The Nature of the Judicial Process. New Haven, Conn.: Yale University Press, 1921.
Dudeja,Vijay Laxmi. Judicial Review in India. New Delhi: Radiant, 1988.
Graber, Mark A. “Constructing Judicial Review.” Annual Review of Political Science 8 (2005): 425–451.
Gupta, Asha. “Judicialization of Education: The Fee Cut Controversy in India.” International Higher Education 38 (Winter 2005): 19–20.
Mason, Alpheus Thomas. The Supreme Court from Taft to Burger. Baton Rouge: Louisiana State University Press, 1979.
“Understanding the Warren Court: Judicial Self-restraint and Judicial Duty.” Political Science Quarterly 71 (1966): 523–563.
Polin, Raymond. “The Supreme Court’s Dilemma Defense.” USA Today, 1986.
Shiviah, M. “Judicial Review, Right to Property, and Constitutional Amendment.” Journal of Constitutional and Parliamentary Studies 5, no. 1 (1971): 77–105.
Thayer, James B. “The Origin and Scope of American Doctrine of Constitutional Law.” Harvard Law Review 7 (1893): 129.
Whittington, E. Keith. Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History. Princeton, N.J.: Princeton University Press, 2007.

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