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What You Should Know

What is Judicial Review (and why is it important)?

We learned in our high school civics classes about the three branches of government in the United States: the legislative, the executive, and the judicial. In broad terms, the legislature enacts laws, the executive enforces the laws, and the judiciary interprets the laws. The legislature and executive are generally referred to as the “political” branches. For most Americans, the judiciary labors in relative anonymity until they get summoned for jury duty, or crucial state or national events occur (the Bush-Gore election recount in Florida in 2000 springs to mind).

Recently, the judiciary is back into the limelight in the wake of the travel ban executive orders signed by the current president. Some people question the authority of the judiciary to even consider such executive actions, much less stop them in their tracks nationwide. In light of these questions, it seems prudent to briefly explore the history of judicial review in this country, and why it has and continues to play a crucial role in ensuring that our representative democracy endures.

Marbury v. Madison

The definitive case on judicial review came early in the history of our Republic, in the landmark case of Marbury v. Madison in 1803. The facts of the case can be found here, but the significance of the case still reverberates over 200 years later to our very day as recently acknowledged by the newest justice on the United States Supreme Court. It certainly is critically important when we have, as during Watergate, a presidential administration that may believe it is above the law.

In brief, Marbury stands for the proposition that the judiciary can declare laws unconstitutional that have been enacted by the legislature and signed into law by the executive. While this is relatively commonplace and noncontroversial today, it was almost a revolutionary proposition during the early years of our then fragile democracy.

Judicial Review and Watergate

Perhaps no better example of the critical role judicial review plays as the bedrock of our constitutional republic were the various decisions federal courts issued during the 1973-1974 Watergate crisis. Indeed, it may have been the judiciary’s finest hour during what President Gerald Ford referred to as our “long, national nightmare.” The most famous ruling was handed down by the United States Supreme Court in the 1974 case of the United States v. Nixon.

There, President Richard M. Nixon attempted to invoke executive privilege in refusing to turn over the Oval Office tapes to the independent prosecutor. The case rapidly worked its way through the federal judiciary until it reached the Supreme Court, as was inevitable. President Nixon may have felt some hope as a number of the justice had been appointed by conservative, Republican presidents, including several he himself had appointed. Nevertheless, the Court unanimously ruled in July, 1974 that Nixon had turn the tapes over. In essence, the Court reaffirmed the time-honored maxim that no man is above the law.

Shortly thereafter, on August 9, 1974 with articles of impeachment pending, President Nixon became the first (and only) president ever to resign the office. But for an independent judiciary and a vigilant Congress, Nixon may have remained president despite what has almost been universally acknowledged as his flagrant and dangerous violations of the United States Constitution.

Fealty

While any, particular, judicial decision may be unpopular with one group or another, it should comfort all Americans that honest, intelligent and ethical judges bear full allegiance to our laws and Constitution, and not to the temporary occupant of the Oval Office. Such constitutional fealty separates us from the petty dictatorships and oligarchies that hold sway in many parts of the world. It is a jewel of our democracy, and it is something for which we can all be proud.