Judicial Review and American Politics: Historical and Political Perspectives
JUDICIAL REVIEW was not fully comprehended during the founding period and remains controversial in American politics. The U.S. Constitution, in Article III, vests the judicial power in one Supreme Court and in any lower courts that Congress may establish. Yet, neither the nature nor the scope of that power is defined. Instead, Chief Justice John Marshall in Marbury v. Madison established the power of judicial review--the power to strike down laws enacted by Congress or the states and to declare official government action unconstitutional. The historical background, the political drama, and the enduring significance of that decision is eloquently described in chapter 1 by Chief Justice Warren E. Burger. After Marbury the Court did not invalidate another act of Congress, and thereby invite national political controversy, until 1857 in Dred Scott v. Sandford--a decision Chief Justice Charles Evans Hughes characterized as a "self-inflicted wound." The Court nonetheless struck down some forty state and local laws prior to the Civil War, thus legitimating the role of the national government and the power of judicial review.
Subject to the constitutional restriction that the Court decide only actual cases or controversies, the justices are not self-starters--they must await an appeal in an actual case or controversy in a properly framed lawsuit. But whereas the president and the Congress are restrained by the ballot box and the processes of democratic government, as well as by judicial review, Chief Justice Harlan Fiske Stone pointed out, "the only check on [the justices'] exercise of power is [their] own sense of self-restraint." 1 Chief Justice Stone was only partially correct, for the Court depends upon the cooperation of other branches of government and compliance by the people; as an irate President Andrew Jackson declared: " John Marshall has made his decision,