Judicial review is the power of courts to strike down laws and government actions that conflict with the Constitution, and the clearest way to understand it is through examples: the Supreme Court has used this authority to void acts of Congress, invalidate state statutes, block presidential orders, and overturn federal agency rules. The Constitution never explicitly grants this power, yet it has shaped American government since 1803.1Legal Information Institute. Historical Background of Judicial Review The cases below show what judicial review looks like in practice, who it reaches, and where it stops.
The Case That Created the Power: Marbury v. Madison (1803)
Every example of judicial review traces back to Marbury v. Madison, the first time the Supreme Court declared a federal law unconstitutional. Outgoing President John Adams had made last-minute judicial appointments, including William Marbury as a justice of the peace in Washington, D.C. The paperwork never got delivered before the new administration took office, and Secretary of State James Madison refused to hand it over. Marbury went directly to the Supreme Court asking for an order forcing delivery.2National Archives. Marbury v. Madison (1803)
Marbury relied on a provision of the Judiciary Act of 1789 that appeared to let the Supreme Court issue that kind of order in an original proceeding. Chief Justice John Marshall agreed Marbury had a right to his commission. Then he changed American law: Marshall ruled that the provision of the Judiciary Act giving the Court this power was itself unconstitutional, because Article III defines a narrow set of cases the Supreme Court can hear as a trial court, and Congress cannot expand that list by statute. His opinion declared that “a law repugnant to the Constitution is void.”2National Archives. Marbury v. Madison (1803)
By ruling against his own Court’s jurisdiction, Marshall avoided a confrontation with the Jefferson administration while permanently claiming the far larger power to say what the Constitution means. Every example that follows rests on that foundation.
Examples of the Court Striking Down Federal Laws
When Congress passes a law that exceeds its constitutional authority, the Court can void it. Two cases show how.
United States v. Lopez (1995)
The Gun-Free School Zones Act of 1990 made it a federal crime to possess a firearm in a school zone. Congress justified the law under its power to regulate interstate commerce. The Supreme Court disagreed, holding that carrying a gun near a school is not an economic activity with a substantial effect on interstate commerce. The majority warned that accepting the government’s reasoning would effectively give Congress a general police power with no meaningful limits, which the Constitution reserves to the states.3Legal Information Institute. United States v. Lopez, 514 U.S. 549 (1995)
Lopez was the first time in nearly sixty years that the Court struck down a federal law for exceeding the Commerce Clause. The commerce power is broad, but not unlimited.
Clinton v. City of New York (1998)
The Line Item Veto Act let the President sign a bill into law and then cancel individual spending or tax provisions within it. President Clinton used this power, and New York City challenged the cancellations. The Supreme Court struck down the Act, finding it violated the Presentment Clause of Article I, which lays out a single process for making law: both chambers pass a bill, and the President either signs it in full or vetoes it in full.4Justia. Clinton v. City of New York, 524 U.S. 417 (1998) Letting the President selectively erase parts of a signed law amounted to a unilateral amendment, a power the Constitution does not grant.
Examples of the Court Overturning State Laws
Judicial review also reaches state legislatures. The most consequential examples involve the Fourteenth Amendment’s guarantees of equal protection and due process.
Brown v. Board of Education (1954)
Multiple states mandated racially segregated public schools, relying on the “separate but equal” doctrine the Court had endorsed decades earlier in Plessy v. Ferguson. In Brown, the Court unanimously rejected that doctrine and held that segregated schools violated the Equal Protection Clause of the Fourteenth Amendment. Chief Justice Earl Warren wrote that “separate educational facilities are inherently unequal.”5United States Courts. History – Brown v. Board of Education Re-enactment The decision invalidated segregation laws across the country and showed that the Court will override even deeply entrenched state practices when they violate constitutional rights.
Loving v. Virginia (1967)
Virginia’s anti-miscegenation statute criminalized marriage between people of different races. Richard and Mildred Loving, an interracial couple married in Washington, D.C., were convicted under the law after returning to Virginia. The Supreme Court struck down the statute, holding that it violated both the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment.6Justia. Loving v. Virginia, 388 U.S. 1 (1967) The Court found that restricting marriage solely on the basis of race served no legitimate purpose beyond maintaining white supremacy and that the freedom to marry is a fundamental right states cannot deny on racial grounds.
Examples of the Court Checking the President
Judicial review does not spare the executive branch. The Court has repeatedly held that presidential authority has boundaries, even in wartime and even on questions touching national security.
Youngstown Sheet and Tube Co. v. Sawyer (1952)
During the Korean War, President Truman faced a looming strike by steelworkers that threatened to disrupt military production. Without waiting for Congress to act, he issued an executive order directing the Secretary of Commerce to seize and operate the nation’s steel mills. The steel companies sued. The Supreme Court ruled the seizure unconstitutional, holding that the President’s duty to “take care that the laws be faithfully executed” is a power to enforce laws, not to create them. Congress had not authorized the seizure, and the President could not claim the authority on his own, even during a military conflict.
Justice Robert Jackson’s concurrence produced a lasting three-category framework for evaluating presidential power: strongest with congressional authorization, in a gray zone when Congress is silent, and at its lowest ebb when acting against Congress’s expressed will. Courts still use this framework.
Trump v. United States (2024)
The most recent high-profile example addressed whether a former President can face criminal prosecution for actions taken while in office. The 2024 decision created a three-tier framework: absolute immunity from prosecution for acts within core constitutional powers like issuing pardons or vetoing legislation; presumptive immunity for other official acts, which prosecutors can overcome by showing that a prosecution would not unduly intrude on executive functions; and no immunity for purely personal or unofficial conduct. The ruling drew on earlier precedents like Nixon v. Fitzgerald (civil immunity for official acts) and Clinton v. Jones (no immunity for private conduct), while extending the analysis into criminal law for the first time.
An Example of the Court Reviewing Federal Agencies
Federal agencies write regulations, interpret statutes, and make enforcement decisions that affect millions of people. Courts review these actions too, under the Administrative Procedure Act. Under 5 U.S.C. ยง 706, a court can set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”7Office of the Law Revision Counsel. 5 U.S. Code 706 – Scope of Review
For forty years, courts applied the Chevron doctrine when reviewing agency interpretations of ambiguous statutes. Under that approach, if a statute was unclear, courts deferred to the agency’s reading as long as it was reasonable. In Loper Bright Enterprises v. Raimondo (2024), the Supreme Court overruled Chevron entirely. The majority held that the APA requires courts to “exercise their independent judgment” in deciding whether an agency has acted within its statutory authority, and that deferring to an agency simply because a statute is ambiguous was inconsistent with that command.8Justia. Loper Bright Enterprises v. Raimondo, 603 U.S. ___ (2024) Courts can still consider an agency’s interpretation and expertise, but they cannot treat it as controlling.
How the Court Decides: Tiers of Scrutiny
Not every challenged law gets the same level of skepticism. The level of scrutiny depends on what kind of right or classification is at stake, and the choice of standard often decides the outcome.
- Rational basis review is the default for most economic and social legislation. The government only needs to show the law is rationally related to a legitimate interest. Courts presume the law is valid, and challengers carry the burden of proving it is not. Most laws survive.9Congress.gov. Equal Protection and Rational Basis Review Generally
- Intermediate scrutiny applies to classifications like sex and to some First Amendment questions. The government must show the law serves an important interest and is substantially related to achieving it.
- Strict scrutiny is reserved for laws that burden fundamental rights or use suspect classifications like race, religion, or national origin. The government must prove the law is narrowly tailored to serve a compelling interest and is the least restrictive way to achieve it. Laws reviewed under strict scrutiny rarely survive.
The standard the Court picks often predicts the result. Brown and Loving both involved racial classifications subject to the toughest review, which is a major reason those state laws fell. A routine tax regulation challenged under rational basis review faces far more forgiving scrutiny.
Where Judicial Review Stops
The power has limits. Some disputes are off-limits to courts, and some challengers lack the right to bring a case at all.
The Political Question Doctrine
Certain constitutional questions belong to Congress or the President, not the courts. In Baker v. Carr (1962), the Supreme Court identified factors that signal a case is a non-justiciable political question, including when the Constitution assigns the issue to another branch, when there are no manageable legal standards for resolving it, or when a judicial ruling would require making a policy decision courts are not equipped to make.10Justia. Baker v. Carr, 369 U.S. 186 (1962)
A concrete application came in Rucho v. Common Cause (2019), where the Court held that challenges to partisan gerrymandering are political questions federal courts cannot resolve. The majority concluded there are no “judicially discoverable and manageable standards” for determining when partisan line-drawing goes too far, and that the Constitution assigns electoral districting to state legislatures checked by Congress.11Supreme Court of the United States. Rucho v. Common Cause, 588 U.S. ___ (2019) That does not mean gerrymandering is legal or desirable; it means federal judges have concluded they are not the ones to fix it.
Standing
Before the Court can review anything, someone with the right to sue must bring the challenge. Article III requires a plaintiff to show three things: an actual or threatened injury, a connection between that injury and the defendant’s action, and a likelihood that a court ruling would fix the problem.12Legal Information Institute. Standing Requirement – Overview A person who simply disagrees with a law but has not been harmed by it cannot challenge it in court. Standing requirements keep the judiciary from issuing advisory opinions and ensure that real disputes drive the development of constitutional law.