Here’s something that surprises a lot of people: nowhere in the Constitution will you find the words “the Supreme Court can strike down laws.” The power that defines the American judiciary \u2014 the ability to declare laws unconstitutional \u2014 doesn’t appear in Article III, the Bill of Rights, or anywhere else in the founding document.<\/p>\n
So how did the Supreme Court get the power to be the final word on what’s constitutional and what’s not?<\/p>\n
The story starts with a midnight appointment gone wrong.<\/p>\n
In 1801, outgoing President John Adams scrambled to fill the judiciary with members of his party before the incoming administration took over. William Marbury was supposed to get a justice of the peace position in Washington, D.C. His commission was signed and sealed, but in the chaos of the transition, it never got delivered. When the new Secretary of State \u2014 a guy named James Madison \u2014 refused to hand it over, Marbury sued.<\/p>\n
The case landed at the Supreme Court in 1803. Chief Justice John Marshall faced a political minefield. If the Court ordered Madison to deliver the commission, he’d probably just ignore them \u2014 and the Court had no way to enforce its orders. But if they ruled against Marbury, it would look like they were backing down.<\/p>\n
Marshall found a third option. He wrote that yes, Marbury deserved his commission. But the law Marbury used to sue \u2014 part of the Judiciary Act of 1789 \u2014 was itself unconstitutional because it tried to expand the Supreme Court’s original jurisdiction beyond what Article III allowed. Therefore, the Court couldn’t hear the case at all.<\/p>\n
In one move, Marshall established that the Court could declare laws unconstitutional while avoiding a direct confrontation with the executive branch. Marbury v. Madison<\/em> gave birth to judicial review.<\/p>\n At its core, judicial review is the power of courts to examine laws and government actions to determine whether they violate the Constitution. If a court finds that they do, it can strike them down or block their enforcement.<\/p>\n This happens at multiple levels. Federal courts can review federal laws, state laws, and actions by government officials. State courts can review state laws against both their state constitution and the U.S. Constitution (though federal courts get the final say on federal constitutional questions).<\/p>\n The process usually starts when someone with standing \u2014 meaning they’re directly affected by a law or action \u2014 brings a case. Courts don’t just review laws in the abstract. There needs to be an actual dispute between parties.<\/p>\n Here’s what that looks like in practice: Congress passes a law. Someone believes that law violates their constitutional rights and files a lawsuit. The case works its way through the court system. Eventually, a court issues a ruling on whether the law is constitutional. If the Supreme Court takes the case and rules, that becomes the final word \u2014 unless the Constitution itself gets amended or the Court later reverses its own precedent.<\/p>\n Judicial review is powerful, but it comes with built-in constraints.<\/p>\n First, courts can only act when cases come to them. They can’t proactively review laws or issue advisory opinions. This means timing matters \u2014 a law might be on the books for years before the right case creates an opportunity to challenge it.<\/p>\n Second, there’s the standing requirement. You can’t sue just because you think a law is unconstitutional. You need to show concrete harm. This is why you often see cases brought by people directly affected \u2014 someone denied a benefit, someone facing prosecution, someone whose business is impacted by a regulation.<\/p>\n Third, courts typically practice restraint through various doctrines. They try to interpret laws in ways that make them constitutional if possible. They avoid constitutional questions when cases can be decided on other grounds. They defer to the other branches on political questions \u2014 issues the Constitution assigns to Congress or the President.<\/p>\n And finally, there’s enforcement. Courts issue rulings, but they depend on the executive branch to enforce them and on public legitimacy to make those rulings stick. A court order is only as strong as the willingness of others to follow it.<\/p>\n You might think the Supreme Court strikes down laws all the time, but it’s actually relatively rare.<\/p>\n As of 2024, the Supreme Court has struck down fewer than 200 federal laws in the entire history of the country \u2014 and tens of thousands have been passed. State and local laws get invalidated more frequently, but we’re still not talking about an everyday occurrence.<\/p>\n Most laws never face constitutional challenges. Many that do get challenged survive. The Court often finds ways to uphold laws by interpreting them narrowly or finding that challengers lack standing.<\/p>\n When the Court does strike something down, it’s usually one of a few issues: laws that restrict speech, laws that treat people differently based on protected characteristics, laws that interfere with fundamental rights, or laws that overstep the boundaries between federal and state power or between the branches of government.<\/p>\n Not all constitutional questions get the same level of scrutiny. Courts have developed different standards depending on what’s at stake.<\/p>\n Some laws get “rational basis review” \u2014 the most deferential standard. The government just needs to show the law is rationally related to a legitimate purpose. Most economic regulations face this standard, and most survive it.<\/p>\n Other laws trigger “intermediate scrutiny,” where the government needs to show the law serves an important government interest and is substantially related to achieving it.<\/p>\n And then there’s “strict scrutiny” \u2014 the highest bar. Laws that discriminate based on race or restrict fundamental rights face this standard. Here, the government must prove the law serves a compelling interest and is narrowly tailored to achieve it. Most laws subjected to strict scrutiny don’t survive.<\/p>\n These frameworks matter because they determine how much deference courts give to the legislative and executive branches. The standards reflect judgments about when courts should second-guess elected officials and when they should defer.<\/p>\n Judicial review sits at the heart of how American government balances power. It’s part of the system of checks and balances \u2014 courts checking the other branches, though courts themselves can be checked through appointments, jurisdiction stripping, and constitutional amendments.<\/p>\n The power also means that constitutional meaning gets defined through cases, not just through the text itself. The First Amendment doesn’t explain exactly what counts as “speech” or when the government can restrict it. The Fourteenth Amendment doesn’t specify what “equal protection” requires in every situation. Courts fill in those details case by case.<\/p>\n Whether you’re tracking legislation on POLIRATR or following a case in the news, understanding judicial review helps make sense of why certain laws face court challenges, why those challenges take specific forms, and what courts can and can’t do about the laws on the books.<\/p>\n The Constitution created three branches. But it took a clever chief justice and a dispute over an undelivered commission to establish how they’d keep each other in check.<\/p>\n The Supreme Court can declare laws unconstitutional \u2014 but that power isn’t actually written in the Constitution. So where did judicial review come from, and how does it work in practice?<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5],"tags":[30,23,70,28,29],"class_list":["post-35","post","type-post","status-publish","format-standard","hentry","category-civic-education","tag-checks-and-balances","tag-constitution","tag-federal-courts","tag-judicial-review","tag-supreme-court"],"yoast_head":"\nWhat Judicial Review Actually Does<\/h2>\n
The Power and Its Limits<\/h2>\n
How Often Does This Happen?<\/h2>\n
Different Courts, Different Standards<\/h2>\n
Why This Power Matters<\/h2>\n
Sources<\/h2>\n
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