The Supreme Court's landmark decision regarding judicial review is Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Marbury was the first Supreme Court decision to strike down an act of Congress as unconstitutional. Chief Justice John Marshall wrote the opinion for a unanimous Court.
The case arose when William Marbury filed a lawsuit seeking an order (a "writ of mandamus") requiring the Secretary of State, James Madison, to deliver to Marbury a commission appointing him as a justice of the peace. Marbury filed his case directly in the Supreme Court, invoking the Court's "original jurisdiction", rather than filing in a lower court.
The constitutional issue involved the question of whether the Supreme Court had jurisdiction to hear the case. The Judiciary Act of 1789 gave the Supreme Court original jurisdiction in cases involving writs of mandamus. So, under the Judiciary Act, the Supreme Court would have had jurisdiction to hear Marbury's case. However, the Constitution describes the cases in which the Supreme Court has original jurisdiction, and does not include mandamus cases. The Judiciary Act therefore attempted to give the Supreme Court jurisdiction that was not "warranted by the Constitution."
Marshall's opinion stated that in the Constitution, the people established a government of limited powers: "The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written." The limits established in the Constitution would be meaningless "if these limits may at any time be passed by those intended to be restrained." Marshall observed that the Constitution is "the fundamental and paramount law of the nation", and that it cannot be altered by an ordinary act of the legislature. Therefore, "an act of the Legislature repugnant to the Constitution is void."
Marshall then discussed the role of the courts, which is at the heart of the doctrine of judicial review. It would be an "absurdity", said Marshall, to require the courts to apply a law that is void. Rather, it is the inherent duty of the courts to interpret and apply the Constitution, and to determine whether there is a conflict between a statute and the Constitution:
| “ | It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.
So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.... |
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Marshall stated that the courts are authorized by the provisions of the Constitution itself to "look into" the Constitution, that is, to interpret and apply it, and that they have the duty to refuse to enforce any laws that are contrary to the Constitution. Specifically, Article III provides that the federal judicial power "is extended to all cases arising under the Constitution." Article VI requires judges to take an oath "to support this Constitution." Article VI also states that only laws "made in pursuance of the Constitution" are the law of the land. Marshall concluded: "Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument."
Marbury long has been regarded as the seminal case with respect to the doctrine of judicial review. Some scholars have suggested that Marshall's opinion in Marbury essentially created judicial review. In his book The Least Dangerous Branch, Professor Alexander Bickel wrote:
| “ | he institution of the judiciary needed to be summoned up out of the constitutional vapors, shaped, and maintained. And the Great Chief Justice, John Marshall—not single-handed, but first and foremost—was there to do it and did. If any social process can be said to have been 'done' at a given time, and by a given act, it is Marshall's achievement. The time was 1803; the act was the decision in the case of Marbury v. Madison. | ” |
Other scholars view this as an overstatement, and argue that Marbury was decided in a context in which judicial review already was a familiar concept. These scholars point to the facts showing that judicial review was acknowledged by the Constitution's framers, was explained in the Federalist Papers and in the ratification debates, and was used by both state and federal courts for more than twenty years before Marbury, including the Supreme Court in Hylton v. United States. One scholar concluded: "efore Marbury, judicial review had gained wide support."
Read more about this topic: Judicial Review In The United States