3.2.1.4 - Judicial Review, Landmark Rulings and Public Policy

Judicial Review

Judicial review is the power of the Supreme Court to decide whether legislative or executive action is compatible with the US Constitution. If a law, executive action or government practice conflicts with the Constitution, the Court can declare it unconstitutional and prevent it from operating.

This makes the US Supreme Court politically significant. The Constitution is the higher law in the US system, so judicial review gives the Court a central role in deciding what the Constitution means in practice. The Court is not simply settling private disputes. It can set limits on Congress, the President, state governments and public bodies.

Marbury v. Madison (1803) is the foundational case. William Marbury wanted the Supreme Court to order Secretary of State James Madison to deliver his judicial commission. Chief Justice John Marshall held that Marbury had a legal right, but that the section of the Judiciary Act 1789 giving the Supreme Court power to issue the order in its original jurisdiction was unconstitutional. The Court therefore denied Marbury's remedy while establishing the wider principle that courts can refuse to apply unconstitutional legislation.

That is the cleverness and controversy of Marbury. The Court appeared restrained because it did not force President Jefferson's administration to act. But it also claimed a major constitutional power: the authority to say when an Act of Congress conflicts with the Constitution.

Judicial review is not the same as general policy-making. The Court must usually wait for a case to be brought, decide legal questions, and give reasons using constitutional text, precedent and legal argument. But once it rules, the political effects can be huge. A judgment can end a policy, require a new law, change state powers, or redefine the constitutional rights citizens can claim.

Activism And Restraint

Judicial activism and judicial restraint describe different views of how boldly judges should use judicial review. They are not simple synonyms for "left-wing" and "right-wing". A liberal Court can be activist or restrained, and a conservative Court can be activist or restrained.

Judicial activism means a willingness to use judicial power assertively, especially by striking down laws, overturning precedent or giving broad meaning to constitutional principles. Critics use the term to suggest judges are making policy from the bench. Supporters may say the Court is doing its job by protecting rights and enforcing constitutional limits when elected branches fail.

Judicial restraint means judges should be cautious about striking down laws or creating new constitutional rules. A restrained judge normally gives more space to elected branches, state governments and established precedent. Supporters say this respects democracy and separation of powers. Critics say too much restraint can allow majorities to violate minority rights.

Strict and loose constructionism are linked but not identical.

The labels are contested because people often call a ruling "activist" when they dislike the outcome. Brown v. Board of Education (1954) can be seen as activist because the Court rejected the old "separate but equal" doctrine and used the Fourteenth Amendment to transform school segregation policy. But many students would also argue it was legitimate constitutional enforcement because state-enforced racial segregation denied equal protection.

Dobbs v. Jackson Women's Health Organization (2022) shows the same problem from the other direction. Supporters describe Dobbs as restrained because it said abortion policy should return to elected representatives. Critics describe it as activist because it overruled Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), removing a federal constitutional right that had existed for nearly fifty years.

The best AQA point is this: activism and restraint are about the Court's role, not just the result. Ask whether the Court expanded or limited rights, struck down or deferred to elected branches, followed or overturned precedent, and used a broad or narrow reading of constitutional language.

Active reading: Why might the same Supreme Court ruling be described as restrained by supporters and activist by critics?

Landmark Rulings

AQA does not require every landmark case in US history. It requires students to analyse and evaluate at least two, including debates and controversies.

Brown v. Board of Education (1954) is a landmark ruling on race and civil rights. The Court held unanimously that state-mandated racial segregation in public schools violated the Equal Protection Clause of the Fourteenth Amendment. This rejected the idea that public facilities could be "separate but equal" in education.

Brown mattered because it changed constitutional meaning in a politically explosive area. The Court did not simply interpret a small procedural rule. It invalidated state segregation laws and gave legal force to the civil rights challenge against Jim Crow. It also showed the Court acting as protector of minority rights against state majorities.

The controversy is that Brown did not immediately desegregate schools. Brown II (1955) told states to desegregate with "all deliberate speed", a phrase that allowed delay and resistance. This matters for evaluation: the Court can announce a constitutional principle, but implementation often depends on lower courts, federal government action, state compliance, Congress, public opinion and pressure-group campaigning.

Roe v. Wade (1973) is a landmark ruling on abortion and privacy. The Court held that the Due Process Clause of the Fourteenth Amendment protected a right to privacy broad enough to include a qualified right to choose abortion before fetal viability. Roe created a national constitutional rule that limited how far states could restrict abortion.

Roe mattered because it shifted abortion from ordinary state criminal law into federal constitutional law. It also became a major controversy over loose constructionism and judicial activism. Supporters argued that the Court protected liberty and bodily autonomy where state laws were restrictive. Critics argued that the Court inferred a right not clearly stated in the Constitution and created a detailed policy framework better left to legislatures.