What Is Judicial Review
Judicial review is the power of courts to decide whether a law or a government action follows the Constitution. If it does not, the court can refuse to enforce it and block the government from carrying it out. The Constitution never names this power; the Supreme Court claimed it in 1803.
In plain terms: Congress, a state, a president, or an agency acts. Someone harmed by that action sues. A judge compares the action to the Constitution, and if the two conflict, the Constitution wins.
Key facts
- The Supreme Court claimed the power in Marbury v. Madison in 1803 (Cornell LII).
- Lawfare’s tracker listed 333 active cases challenging the administration in mid-September 2026 (Lawfare).
- Since 2007, the Supreme Court has reversed the lower court in 71.4% of the cases it decided (Ballotpedia).
- In 2025, Trump v. CASA limited a judge’s power to block a policy for people who did not sue (CRS).
- The full D.C. Circuit heard argument on September 29, 2026 in the criminal contempt inquiry into whether officials willfully defied a court order, and it has not ruled (D.C. Circuit docket).
How Marbury v. Madison Created Judicial Review
The case began with a job that was never delivered. In his last days in office, President John Adams signed a commission making William Marbury a justice of the peace for the county of Washington, in the District of Columbia, a five-year post. The secretary of state sealed it. The new administration’s secretary of state, James Madison, never handed it over, and Marbury asked the Supreme Court to order him to (Marbury v. Madison).
Chief Justice John Marshall answered three questions in order. Did Marbury have a right to the commission? Yes: withholding it was “not warranted by law, but violative of a vested legal right.” Did the law give him a remedy? Yes. Could the Supreme Court issue the order he asked for? No, and that answer is the one that changed American government.
The Judiciary Act of 1789 had given the Court power to issue that kind of order in a case like Marbury’s. Marshall held that this part of the law “appears not to be warranted by the constitution,” because it expanded the Court’s original jurisdiction beyond what the Constitution allows. A law that conflicts with the Constitution, he wrote, is “void,” and deciding when that happens belongs to the courts.
”It is emphatically the province and duty of the judicial department to say what the law is.”
Chief Justice John Marshall, Marbury v. Madison (1803)Marbury never got his commission. The Court gave up a small power, issuing that order, and claimed a far larger one: the power to set aside an act of Congress.
What Courts Can Review
Judicial review reaches any government action, not only acts of Congress. Federal courts review federal laws, state laws, executive orders, and agency rules. State courts review state laws under their own state constitutions.
What courts can review, with recent examples
Source: Supreme Court opinions; Resist Now explainers linked below
The explainers named in the table: Voting Rights Act, national emergency powers, birthright citizenship, Chevron deference, separation of church and state, and redistricting.
How a Case Moves Through the Courts
A court cannot review anything until someone with a real injury sues. Judges do not rule on laws in the abstract. The person bringing the case needs standing: a concrete harm that the ruling could fix.
How a constitutional challenge moves through the federal courts
- Any time The government acts A legislature passes a law, a president signs an order, or an agency issues a rule.
- After a harm Someone with standing sues A person, company, group, or state that is directly harmed files a lawsuit in a district court.
- Days to weeks A request to pause it The judge can order the action paused while the case goes on, if the challenger is likely to win and would suffer harm that cannot be undone.
- Months to years The ruling and appeals The district court decides, and the losing side can appeal to a circuit court and ask the Supreme Court to hear it.
- Final Upheld, struck down, or narrowed The action survives, is struck down, or survives in part. A ruling on the Constitution can be changed only by the Court or an amendment.
Source: Article III of the Constitution; Federal Rules of Civil Procedure; Supreme Court practice.
Most cases end below the Supreme Court. In its October 2024 term, the Court heard argument in 73 cases out of 3,856 filed (Supreme Court year-end report). It also decides urgent requests without full argument, on what is called the shadow docket.
Where the Court Fights Stand in October 2026
The 2025-26 fights test two things at once: what courts may block, and whether their orders are obeyed. In March 2025, men deported under the Alien Enemies Act were flown to a prison in El Salvador. Chief Judge James Boasberg opened a criminal contempt inquiry into whether officials willfully defied his order, and that inquiry reached the full D.C. Circuit. The due process explainer covers what happened to the men themselves.
The ACLU notes that judges on that court have written that the government’s actions raised “grave rule-of-law concerns,” and quotes Judge Pan: “When the political branches cease to honor the judgments and decisions of the judiciary, the carefully calibrated structure of our government collapses.” Our rule of law explainer shows how independent measures of those checks in the United States have fallen since 2015.
Where Each Judicial Review Fight Stands
As of October 6, 2026
- Defiance of the March 2025 flight order In litigation, contempt
The full D.C. Circuit heard argument in the criminal contempt inquiry on September 29, 2026. It has not ruled. (source)
- Birthright citizenship order (2025) Final ruling, order blocked
Trump v. Barbara, June 30, 2026: 6-3, the children the order targets are citizens at birth; injunction affirmed. (source)
- New birthright order (August 2026) Blocked by a court, for a class of families
A federal judge in Maryland blocked it on September 2, 2026. (source)
- Emergency-law tariffs Final ruling, not authorized
Learning Resources v. Trump, February 20, 2026: the emergency law does not authorize tariffs. (source)
- Firing independent-agency heads Final ruling, allowed
Trump v. Slaughter, June 29, 2026, 6-3: the FTC's protection of commissioners from removal except for cause "is contrary to the separation of powers." (source)
- Election rules order (EO 14248) Blocked by a court, three provisions, permanently
In LULAC v. Executive Office of the President, a federal court permanently blocked the proof-of-citizenship rule for the federal registration form on October 31, 2025, then two more provisions on January 30, 2026, holding that election rules belong to the states and Congress. (source)
- Alabama congressional map In litigation
The Supreme Court stayed the order against the 2023 map on June 2, 2026. The plaintiffs asked it to reject Alabama's appeal on September 18. (source)
- Nationwide injunctions Final ruling, narrowed
Trump v. CASA, June 27, 2025: judges generally cannot block a policy for people who did not sue. (source)
- Bills limiting court relief (H.R. 1526, S. 1206) Proposal
The House passed H.R. 1526 219-213 on April 9, 2025. Both bills sit in Senate Judiciary with no action. (source)
Source: Supreme Court opinions and orders; D.C. Circuit docket; govinfo bill status; Lawfare; Resist Now explainers
One case shows how long a court order can take to carry out. On April 10, 2025, the Supreme Court said the government must “facilitate” the return of Kilmar Abrego Garcia, who had been deported to El Salvador by what the government admitted was an error (order). He was returned to the United States in June 2025 and jailed on smuggling charges, PBS NewsHour reported.
The executive orders explainer tracks the status of the major 2025-26 orders, and presidential immunity covers how far a court can reach a president personally.
Judicial Review by the Numbers
The Supreme Court usually takes a case to change the result. Since 2007 it has decided 1,381 cases and reversed the court below in 986 of them, or 71.4%. In the term that ended in June 2026, it reversed 48 decisions, 70.6% (Ballotpedia). The Ninth Circuit has the highest reversal rate since 2007, at 79.5%. The Fifth Circuit sent the Court the most cases last term, 11.
In its first 100 days, the second Trump administration drew about four times as many nationwide injunctions as the first did in the same span. The Congressional Research Service counted 25 between January 20 and April 29, 2025, against 6 in the first 100 days of the first Trump administration and 4 under President Biden.
| Category | Value |
|---|---|
| Trump, first term | 6 |
| Biden | 4 |
| Trump, second term | 25 |
Source: Congressional Research Service, R48476 (2025), comparing equal 100-day windows. Counts depend on how a nationwide injunction is defined.
That surge is what put Trump v. CASA in front of the Supreme Court in 2025. Over full terms, CRS counted 86 nationwide injunction cases in the first Trump administration and 28 under Biden (CRS R48476).
- 71.4%
- of Supreme Court decisions since 2007 reversed the court below
- 23 of 31
- emergency rulings on administration actions that went its way at least partly
- ~232
- of its own precedents the Court had overruled since 1810, as of 2020
The emergency figure comes from the Brennan Center’s tracker, covered in the shadow docket explainer. The overruled-precedents estimate comes from the Library of Congress, as the National Constitution Center reports; recent reversals include Loper Bright (2024) and Dobbs (2022).
The Honest Disagreement
The argument is not over whether courts should have this power. It is over how far it should reach.
The case for strong judicial review goes back to Alexander Hamilton. In Federalist No. 78, he called the judiciary “the least dangerous” branch because it has “neither FORCE nor WILL, but merely judgment,” and argued that “the interpretation of the laws is the proper and peculiar province of the courts” (Federalist No. 78). On this view, courts protect rights that a majority would otherwise override, as in Brown v. Board of Education.
The case for limits is as old. Abraham Lincoln, in his first inaugural address in 1861, warned that if national policy on vital questions were “irrevocably fixed by decisions of the Supreme Court,” then “the people will have ceased to be their own rulers” (First Inaugural).
The same power runs in both directions: in 2026 it blocked an executive order, and in 2013 it struck down part of the Voting Rights Act that Congress had passed and a president had signed.
What Judicial Review Cannot Do
- It cannot start on its own. Courts act only when someone with standing sues. A policy no one has standing to challenge can stand.
- It cannot enforce itself. As Hamilton wrote, courts depend “upon the aid of the executive arm even for the efficacy of its judgments.” Contempt findings and public pressure are the tools when an order is ignored.
- It does not always end a policy. Weeks after losing the birthright citizenship case in June 2026, the administration signed a new, narrower order, and the fight started again in court.
- It moves slowly. A case can take years to reach final judgment, which is why temporary orders, and the fights over them, matter so much.
Frequently Asked Questions
Who established judicial review?
Chief Justice John Marshall, in Marbury v. Madison in 1803. The Constitution does not name the power; the Court held that it follows from a written constitution being “fundamental and paramount law.”
What is a good example of judicial review?
In Trump v. Barbara on June 30, 2026, the Supreme Court held 6-3 that children born in the United States to parents present unlawfully or temporarily are citizens at birth, and it affirmed the order blocking the 2025 executive order that tried to end birthright citizenship. The Court compared a government action to the Constitution and refused to let it take effect.
Can Congress overturn a Supreme Court decision?
Sometimes. If the ruling interprets a statute, Congress can rewrite the law. If it interprets the Constitution, only a constitutional amendment or a later Court decision can change it.
What happens if the government ignores a court order?
A judge can hold officials in contempt. Courts depend on the executive branch to carry out their orders, as Alexander Hamilton wrote in Federalist No. 78. In 2026 the full D.C. Circuit took up a criminal contempt inquiry into whether officials willfully defied an order in the Alien Enemies Act flights case.
Do state courts have judicial review too?
Yes. State courts strike down state laws under state constitutions, and state court decisions before Marbury helped model the idea. In Moore v. Harper (2023), the Supreme Court held that “the Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” so state courts can review congressional maps under their state constitutions.
What You Can Do
- Ask your senators how they will vote on judicial nominations. The Senate confirms every federal judge for life. Ask what standard they apply, on the record.
- Follow whether court orders are obeyed, not just issued. Watch for the full D.C. Circuit’s ruling in the contempt inquiry, which it heard on September 29, 2026.
- Track the cases that affect you. Lawfare’s litigation tracker and Just Security’s tracker list the challenges by topic.
- Tell your senators to keep courts able to stop an unlawful policy for everyone it harms. Use the letter below to oppose S. 1206 and H.R. 1526.