How does the US Supreme Court use its power of judicial review?

Judicial review is the power of the Supreme Curt to declare acts of Congress, or actions of the executive – or acts or actions of state governments – unconstitutional. The power is NOT mentioned in the Constitution, but was “found” in Marbury v. Madison (the first time the Supreme Court declared an act of Congress unconstitutional).

Since then the Supreme Court has used this power on numerous occasions – against both federal and state laws. The Court has gone through periods of both judicial activism and judicial restraint. During the 1980s for example, the Court declared 16 federal and 161 state laws unconstitutional. On the other hand, during the 1940s the Supreme Court declared only 2 federal and 58 state laws unconstitutional.

By using its power of judicial review the Court can, in effect, update the meaning of the words in the Constitution, most of which were written over two centuries ago. Hence, the Court decides what the phrase “cruel and unusual punishment” means today. Likewise, it decides whether “freedom of speech” applies to the internet in terms of pornography etc.

Chief Justice Charles Evans was quoted as saying: “We are under a Constitution, but the Constitution is what the judge says it is.”

Using its power of judicial review, the Supreme Court has involved itself in a host of political issues. It is this that helps give the Court its political importance, because many of the issues dealt with by the Court are the key political issues of the day – matters over which political parties disagree and elections are fought. For example, abortion. In addition, the Supreme Court has handed down landmark decisions in recent years on such politically contentious issues as the rights of racial minorities, capital punishment, gun control and freedom of speech.

The political importance of the Court is demonstrated in the case of George W Bush vs. Albert Gore Jr. (2000). Five weeks after the presidential election, on 11 December 2000, the Supreme Court ruled that the manual recount scheme devised by the Florida state Supreme Court was unconstitutional because it violated the 14^th amendment “equal protection” clause. The Court was seen by some to be handing the election to George W Bush.

The power of judicial review not only gives the Court political importance, but is also said to turn it into a quasi-legislative body. This is because the decisions that the Court hands down have almost the effect of a law having been passed by Congress. So, for example, when its 1973 Roe v. Wade decision was made, it had the same impact of an abortion rights law having been passed by Congress. In this sense the Supreme Court has been described as “a third house of the legislature”.