Origins of Judicial Review

Judicial review found its roots in Marbury v. Madison. When John Adams appointed "midnight judges," Thomas Jefferson and James Madison weren't pleased. Madison left William Marbury's commission undelivered.

Marbury sued, taking his complaint to the Supreme Court. Chief Justice John Marshall proclaimed that the judiciary had the duty to say what the law is, effectively giving the Supreme Court the power of judicial review to strike down unconstitutional laws.

The Framers had mixed views on this subject:

• Alexander Hamilton supported judicial review in Federalist No. 78
• James Madison feared it could overthrow legislative supremacy

The founding debates never settled on a unanimous stance.

Pre-Marbury, some judges were already striking down unconstitutional laws. At the Philadelphia convention, there was general support for judicial oversight, but no explicit powers were written into the Constitution.

Marshall's decision in Marbury v. Madison was accepted without much pushback due to its measured approach. Throughout history, Congress retained the ability to check this power by altering the court's structure and jurisdiction.

Framers' Views on Judicial Power

The Founding Fathers had varied opinions on judicial power:

• Alexander Hamilton: Viewed the courts as guardians of the Constitution, keeping legislative and executive actions in check.
• James Madison: Worried about judges becoming unchecked and nullifying laws arbitrarily.
• Thomas Jefferson: Feared courts morphing into unelected overlords.

During Constitutional Convention debates, some like John Dickinson and John Mercer dismissed the notion that judges should void laws. Others, like Gouverneur Morris, supported judicial oversight of unconstitutional laws.

The Federalist Papers, state conventions, and letters from these figures added layers to the evolving concept of judicial power. The actual construction of judicial power emerged from a mix of fears, hopes, and disparate visions.

Originalists believe in staying true to the textual simplicity and intended constraints of the Founders. The judiciary was meant to interpret laws as written, not engage in activism or overreach into political arenas.¹

Checks and Balances on the Judiciary

The Founding Fathers designed checks and balances to keep the judiciary in line:

1. The President nominates justices, subject to Senate confirmation.
2. Congress can impeach justices, control the judiciary's budget, and strip its jurisdiction over certain cases.

Ex parte McCardle in 1869 demonstrated Congress's power to limit the Supreme Court's jurisdiction. The potential for court-packing, as considered by FDR in 1937, serves as another check on judicial power.²

The separation of powers ensures each branch has influence, but no single one dominates:

• The judiciary can declare laws unconstitutional
• Congress can draft, clarify, and amend those laws
• The Executive can check legislative overreach and appoint justices, but nominations need congressional approval

This system maintains an uneasy equilibrium, keeping the judiciary as a coequal branch committed to constitutional fidelity, always subject to checks that align with the Founders' design.

Historical Instances of Judicial Limitation

Ex parte McCardle (1868) exemplifies Congress reining in the Supreme Court's power. William McCardle, imprisoned for criticizing Reconstruction laws, challenged his detention under the Habeas Corpus Act of 1867. As the case escalated, Congress passed legislation removing the Supreme Court's jurisdiction over such appeals, preventing potential undoing of Reconstruction efforts. The Court conceded and abandoned the case.

During the Civil War, President Lincoln suspended habeas corpus in 1861. When John Merryman was detained and sought a writ, Chief Justice Taney ruled the suspension unconstitutional in Ex parte Merryman. Lincoln disregarded the ruling, demonstrating that executive-legislative action could override judicial power in matters of national security.

The Tenth Amendment era saw clashes between the Court and Congress over federalism and states' rights. Congress responded to perceived judicial overreach by:

• Tightening legal restrictions through statutes
• Providing clarifications
• Steering courts away from decisions that stretched federal powers beyond public acceptance

These events highlight Congress's ability to curtail the justices' influence, demonstrating how our constitutional system functions. The equilibrium rests with an attentive Congress that wields its constitutional authority precisely and purposefully.

Modern Debates on Judicial Power

The debate around judicial power remains fierce, particularly following the Supreme Court's decision to overturn Roe v. Wade in Dobbs v. Jackson Women's Health Organization. This ruling returned the issue of abortion rights to the states, sparking controversy and political debate.

Left-wing commentators decry the rise of a 'juristocracy,' fearing unchecked power by unelected officials. Right-wing advocates celebrate it as a triumph for constitutional originalism. Overturning Roe v. Wade is a valid exercise of judicial review, an inherent duty of the Supreme Court. Originalists argue that Roe v. Wade was judicial activism disguised as constitutional law, and Dobbs reset the constitutional compass.

Critics claim this move undermines the Court's legitimacy, painting it as political. Discussions of court-packing and jurisdiction stripping circulate in legislative halls.

However, the Founding Fathers designed a constitutional system flexible enough to weather these storms. Judicial restraint isn't about avoiding responsibility; it's about respecting constitutional limits while interpreting law through an originalist lens.

The history of judicial review is filled with conflicts that shaped its current form, and today's debates are simply a new chapter. The back-and-forth between judicial decisions and legislative responses maintains our constitutional balance. Elected leaders considering Court-packing or jurisdiction-stripping should recall their predecessors' humility when facing similar crossroads.

The Supreme Court's recent decisions represent a recalibration aligned with original constitutional intent. The judiciary must continue its measured approach to interpretation, resisting activism while remaining steadfast protectors of constitutional fidelity. Judicial restraint, combined with originalist principles, remains our best defense against court politicization and erosion of constitutional order.

Judicial review, as established in Marbury v. Madison, is a fundamental aspect of our constitutional framework.¹ It emphasizes the judiciary's role in preserving the balance of power, aligning with the Founders' original intentions. This principle continues to guide us, ensuring that the judiciary remains a reliable guardian of constitutional fidelity.