Which Court case established judicial review?

The Power of Judicial Review

Article III of the U.S. Constitution describes the powers and duties of the judicial branch.  Nowhere does it mention the power of the courts to review actions of the other two branches, and possibly declare these actions unconstitutional.  This power, called Judicial Review, was established by the landmark decision in Marbury v. Madison, 1803.

“It is emphatically the province and duty of the Judicial Department to say what the law is…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… the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.” Chief Justice Marshall, Marbury v. Madison, 1803

• Facts about Judicial Review
• Possible Subjects of Judicial Review

• • No law or action can contradict the U.S. Constitution, which is the supreme law of the land.
  • The court can only review a law that is brought before it through a law suit.
  • State courts also have the power to review state laws or actions based upon their state constitutions.

• • Legislative actions (laws made by congress)
  • Executive actions (treaties, executive orders issued by the president, or regulations issued by a government agency)
  • State and local laws

Case Studies

Marbury v. Madison, 1803

• Facts
• Issue
• Case History

• When President John Adams did not win a second term in the 1801 election, he used the final days of his presidency to make a large number of political appointments.  When the new president (Thomas Jefferson) took office, he told his Secretary of State (James Madison), not to deliver the official paperwork to the government officials who had been appointed by Adams.  Thus the government officials, including William Marbury, were denied their new jobs.  William Marbury petitioned the U.S. Supreme Court for a writ of mandamus, to force Madison to deliver the commission.

• Section 13 of the Judiciary Act of 1789 (a law written by Congress), gave the Supreme Court the authority to issue writs of mandamus to settle disputes such as the one described here.  This power to force actions of government officials went above and beyond anything mentioned in Article III of the Constitution.

  Therefore, in addition to deciding whether or not William Marbury had a right to his job, the U.S. Supreme Court also had to decide whether or not Section 13 of the Judiciary Act was in violation of the Constitution (the birth of Judicial Review).

• This case did not reach the U.S. Supreme Court the way most issues do.  Most cases reach the Supreme Court as the court of last resort, when the Justices are asked to review a decision of a lower court.  In this case, William Marbury petitioned the U.S. Supreme Court directly due to the provision in Section 13 of the Judiciary Act of 1789.  Note:  The power to directly accept petitions such as these is not granted to the Supreme Court in the Constitution.

What Do You Think The U.S. Supreme Court Decided?

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• Though the Justices agreed that William Marbury had a right to his job, they also ruled that issuing the writ of mandamus to force that to happen did not fall under their jurisdiction as stated in the Constitution. The Supreme Court opinion explained that it is within their power and authority to review acts of Congress, such as the Judiciary Act of 1789, to determine whether or not the law is unconstitutional. By declaring Section 13 of the Judiciary Act of 1789 unconstitutional, the U.S. Supreme Court established the doctrine of Judicial Review.

• The Supreme Court said “The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the (first) part of the alternative be true, then a legislative act contrary to the Constitution is not law.” by author of opinion, Chief Justice John Marshall.

• • The Oyez Project
  • The opinion of the U.S. Supreme Court
  • The official version of the opinion can be found in the U.S. Reports at your local law library. Marbury v. Madison, 5 U.S. 137 (1803)

Ladue v. Gilleo, 1994

• Facts
• Issue
• Case History

• In 1990, Margaret Gilleo placed a sign in the yard of her home in Ladue, Missouri. The sign said “Say No to War in the Persian Gulf, Call Congress Now.” The city of Ladue had a law against yard signs, and told Ms. Gilleo to take her signs down. Ms. Gilleo sued the city of Ladue for violating her 1st Amendment rights.

• Was Ladue’s law against signs unconstitutional?

• Margaret Gilleo sued the city of Ladue in the U.S. District Court for the Eastern District of Missouri. The court ruled in her favor and stopped Ladue from enforcing the law. Ladue appealed the decision, and the Eighth Circuit Court of Appeals also found in Ms. Gilleo’s favor. The city of Ladue then asked the U.S. Supreme Court to review the case.

What Do You Think The U.S. Supreme Court Decided?

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• The U.S. Supreme Court affirmed the decision of the lower courts. Ladue’s law against yard signs violated the 1st Amendment of the U.S. Constitution. The 1st Amendment protects political speech, and banning yard signs takes away the main avenue by which people traditionally express their personal political views. The value of protecting personal political speech is more important than Ladue’s desire to keep the city free of clutter.

• The Supreme Court said “They may not afford the same opportunities for conveying complex ideas as do other media, but residential signs have long been an important and distinct medium of expression.” by author of opinion, Justice John Paul Stevens.

• • The Oyez Project
  • The opinion of the U.S. Supreme Court
  • The official version of the opinion can be found in the U.S. Reports at your local law library.
    Ladue v. Gilleo, 512 U.S. 43 (1994)

Harper v. Virginia Board of Elections, 1966

• Facts
• Issue
• Case History

• Annie Harper was not allowed to register to vote in Virginia because she wasn’t able to pay the state’s poll tax. Virginia law required voters to pay $1.50 tax to register, with the money collected going to public school funding. Ms. Harper sued the Virginia Board of Elections, claiming the poll tax violated her 14th Amendment right to equal protection. Note: The 24th Amendment to the Constitution already banned poll taxes in federal elections, but not in state elections.

• Was the Virginia law requiring a tax to vote in a state election unconstitutional?

• The U.S. District Court dismissed Ms. Harper’s suit in favor of the Board of Elections. She then asked the U.S. Supreme Court to review the case.

What Do You Think The U.S. Supreme Court Decided?

• Decision
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• The Supreme Court declared the Virginia poll tax law unconstitutional. By making it more difficult for poor people to vote, the state was violating the 14th Amendment guarantee of equal protection. Voting is a fundamental right, and should remain accessible to all citizens. The amount of wealth someone has should have no bearing on their ability to vote freely.

• The Supreme Court said “We conclude that a State violates the …(Constitution).. …whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax….Wealth or fee paying has, in our view, no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned.” by author of opinion, Justice William O. Douglas

• • The Oyez Project
  • The opinion of the U.S. Supreme Court
  • The official version of the opinion can be found in the U.S. Reports at your local law library. Harper v. Virginia Board of Elections, 383 U.S. 663 (1966)

The Power of Judicial Review

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