The Controversy over Judicial Review

Topics: Supreme Court of the United States, Separation of powers, Law Pages: 4 (1599 words) Published: April 23, 2014
Judicial review is the power of a court to review a law or an official act of a government employee or agent; for example, although the basis is different in different countries, as unconstitutional or violating of basic principles of justice. In many jurisdictions, the court has the power to strike down that law, to overturn the executive act, or order a public official to act in a certain manner if it believes the law or act to be unconstitutional or to be contrary to law in a free and democratic society. In some, such as Scotland and also England, the power goes further, and it may be possible to strike down a decision simply because it ignored relevant and material facts. The power of judicial review is held by courts in the United States that while developing out of British law is based fundamentally on the tripartite nature of governmental power as enunciated in the United States Constitution. The only explicit definition given in the Constitution is in Article III, where it says that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Judicial review was established in the Supreme Court decision in Marbury v. Madison. However, many believe the exercise of judicial review is controversial, as many question whether the power of the judicial review is justified. “Should nine unelected, life-time appointees wield this much power in a twenty-first-century democracy” (Morone, Kersh, p.478)? In Abraham Lincoln’s first Inaugural Address, he spoke out against judicial review, reflecting a fear that: “The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” One might be...
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