Judicial Review in AP US Government

Marshall's claim in Marbury and Hamilton's case for it

Judicial review is the main idea in Topic 2.8 (The Judicial Branch) in Unit 2, Interactions Among Branches of Government. Unit 2 is built around one big question: how each branch limits the others. Judicial review is the judiciary's answer to that question, and the course asks you to explain it using Article III and Federalist No. 78.

Article III creates the Supreme Court and gives federal courts power over cases arising under the Constitution and federal law. It doesn't say courts can cancel laws. That move came in Marbury v. Madison, a required case. William Marbury sued Secretary of State James Madison to get a judicial commission that President John Adams had signed but that was never delivered. Chief Justice John Marshall ruled that Marbury deserved the commission but that the Court couldn't order it delivered. The part of the Judiciary Act of 1789 that let him bring the case straight to the Supreme Court conflicted with Article III, so it was void.

Marshall's reasoning ran in three steps. The Constitution is the supreme law. A law that conflicts with it can't stand. Interpreting the law is the job of the courts. Federalist No. 78, a required document, makes the same case from the other direction. Hamilton called the judiciary the "least dangerous" branch because it has "neither force nor will, but merely judgment." Because judges serve during good behavior (in practice, for life), they can rule against popular majorities without worrying about losing their jobs.

Morrison, Lopez, and Nixon: the power aimed at Congress and the president

Judicial review lets the courts check both elected branches and the states. It also connects Unit 2 to Topic 1.8, where the Court's readings of the Commerce Clause and the Fourteenth Amendment shift power between the national government and the states.

• Congress: In United States v. Lopez (1995), another required case, the Court struck down the Gun-Free School Zones Act as beyond the Commerce Clause. In United States v. Morrison (2000), it struck down the civil-suit provision of the Violence Against Women Act of 1994 for similar reasons. In INS v. Chadha (1983), it threw out the legislative veto, a tool Congress had used to block executive actions.
• The president: In United States v. Nixon (1974), the Court ruled that executive privilege isn't absolute and ordered Nixon to turn over the Watergate tapes.
• States: In Brown v. Board of Education (1954), the Court struck down state laws requiring segregated public schools under the Equal Protection Clause.

The affirmative action cases in Topic 3.13 (Bakke, Gratz, Grutter) are judicial review too. In each one, the Court tested a university admissions policy against the Fourteenth Amendment's equal protection clause.

Where the Court's power runs out

Judicial review is a strong check, but it has hard limits, and Topic 2.11 asks you to explain them. The first limit is that courts can't act on their own. A real case has to reach them before they can rule on any law.

The other branches can also push back. Congress can pass a new law that changes the effect of a ruling. The Religious Freedom Restoration Act of 1993 responded to the Court's narrow reading of free exercise in Employment Division v. Smith (1990). The states can ratify an amendment. The Sixteenth Amendment allowed a federal income tax after the Court had struck one down in 1895. Presidents and senators can reshape the Court through appointments. Franklin Roosevelt went further and proposed adding justices after the Court struck down New Deal laws. That court-packing plan failed in Congress.

The Court also has limited independent means of enforcing its rulings and often depends on executive officials and other authorities to carry them out. After Brown, many Southern states delayed desegregation for years. Federalist No. 78 anticipated this weakness when it described the judiciary as having "neither force nor will."

Judicial review vs. activism and restraint

A restrained justice who votes to uphold a law is still using judicial review, and that's the easiest way to see why review and activism aren't the same thing. Judicial review is the power itself. Activism and restraint are two philosophies about how hard to use it.

An activist approach says courts should be willing to overturn precedent and strike down legislative or executive acts. A restraint approach says courts should follow existing precedent and defer to the elected branches. A restrained justice who upholds a law is still exercising judicial review, because the decision to uphold comes from comparing the law to the Constitution.

Scenario questions can test this split. One example: critics said Milliken v. Bradley (1974), which rejected an interdistrict desegregation remedy absent an interdistrict constitutional violation, showed a Court holding back too much. That criticism challenges the restraint view, because it wants courts to use judicial review more aggressively. Confirmation fights work the same way. When a senator wants a nominee who will overturn precedent to protect rights, that's an argument over activism, and it doesn't question whether judicial review exists.

Using Marbury and Federalist 78 in Questions 3 and 4

Set judicial review next to the presidential veto and the differences show up fast. The veto works earlier: the president blocks a bill before it becomes law, and Congress can override with a two-thirds vote in each chamber. Judicial review voids a law that's already in effect, only when a case arrives, and Congress can't override it with a simple vote. A text-based stimulus may quote Federalist No. 78 and ask what it implies about judicial independence.

If Question 3 (SCOTUS Comparison) pairs Marbury with a non-required case involving a court striking down an act of Congress, explain how each case illustrates judicial review. A strong answer names the shared principle (judicial review or separation of powers) and explains how the facts of both cases connect to it.

In Question 4 (Argument Essay), Federalist No. 78 is your evidence when the prompt asks about judicial power or how to limit government. Your reasoning should tie life tenure to independence. For the rebuttal, you can admit that unelected judges overruling elected lawmakers raises a democratic concern, then answer it with the checks Congress, the president, and the amendment process still hold over the Court.