What Is Judicial Review?

What Is Judicial Review

Judicial review is a court’s power to decide whether a law or government action matches the Constitution. If a court finds a conflict, it can block that action from being enforced.

Here is what that looks like in practice. Congress passes a law. Someone argues it violates the Constitution. A court reviews the law and decides. If the court agrees, the law is struck down. That is judicial review.

How Judicial Review Began in 1803

The Constitution does not explicitly grant courts the power to strike down laws. That power was established in Marbury v. Madison (1803), when Chief Justice John Marshall ruled that part of the Judiciary Act of 1789 conflicted with the Constitution and was therefore void.

The case itself was about a minor political appointment. Marshall used it to establish a principle that changed American government permanently. When a law conflicts with the Constitution, the Constitution wins, and courts are the ones who make that call.

Every major constitutional dispute since, from segregation to abortion to executive power, has been resolved through the doctrine Marshall created. The Congressional Research Service links the modern expansion of judicial review to this decision.

Federal Laws, State Laws, Executive Orders, Agency Rules

Judicial review is not limited to dramatic Supreme Court cases. Courts can review any government action for constitutional compliance.

A federal court in Texas can block a nationwide EPA regulation. A state court in Alabama can rule that frozen embryos are legally children. A three-judge panel can stop a redistricting map that a legislature passed in 72 hours. Judicial review is the mechanism behind all of it.

How a Law Gets Challenged, Reviewed, and Decided

1. Government acts. A legislature passes a law, a president signs an executive order, or an agency issues a regulation.
2. Someone challenges it. An individual, state, organization, or company files a lawsuit arguing the action violates the Constitution or exceeds legal authority.
3. A court reviews it. A judge evaluates whether the action is constitutional. The court may issue an injunction blocking enforcement while the case proceeds.
4. The court decides. The action is upheld (constitutional), struck down (unconstitutional), or narrowed (partially blocked).

Cases can be appealed through circuit courts to the Supreme Court, but most constitutional disputes are resolved at lower levels. The Supreme Court hears roughly 60-80 cases per term out of 7,000+ petitions filed.

333 Active Cases Are Testing the Courts

Judicial review is not abstract. As of August 2026, the Lawfare litigation tracker counts 333 active cases challenging administration actions, and Just Security’s tracker counts more than 750 separate suits. Four developments make this moment unusual.

Chevron deference is gone. In June 2024, the Supreme Court decided Loper Bright Enterprises v. Raimondo and overturned Chevron v. Natural Resources Defense Council, the 40-year rule that told courts to defer to an agency’s reading of an unclear statute. Judges now interpret those statutes themselves, so policy calls that agencies used to make are decided by courts.

Nationwide injunctions are limited. In Trump v. CASA (June 2025), the Court held 6-3 that a federal judge cannot block a policy for people who are not parties to the case. Judges can still protect the plaintiffs in front of them, and plaintiffs have turned to class actions and multi-state suits to reach the same broad effect.

Some court orders have been defied or slow-walked. After Judge James Boasberg ordered deportation flights halted under the Alien Enemies Act in March 2025, the planes landed in El Salvador anyway. He later found probable cause to hold officials in criminal contempt. When the Supreme Court told the government to “facilitate” the return of wrongly deported Kilmar Abrego Garcia, officials read the word narrowly and delayed for months.

Executive power keeps reaching the Court. In February 2026, the Court struck down the administration’s global tariffs in Learning Resources v. Trump, ruling that the emergency-powers law does not let a president tax imports. Four months later, on June 29, 2026, it decided Trump v. Slaughter and gave the president broad power to fire officials at independent agencies.

The Supreme Court Reverses 71% of Cases It Hears

The Supreme Court does not take cases to agree with lower courts. Since 2007, it has reversed the decision below in 71% of cases (938 of 1,313). The Fifth Circuit, which covers Texas, Louisiana, and Mississippi, has been the single most-reversed appeals court in recent terms.

Nationwide injunctions climbed sharply under the second Trump administration, which is what put Trump v. CASA in front of the Court.

Nationwide Injunctions by Administration

Category	Value
Bush	12
Obama	19
Trump (1st)	55
Biden	14
Trump (2nd, 100 days)	25

Nationwide injunctions issued by federal courts. Trump's first term saw 55 through February 2020. The second term saw 25 in the first 100 days alone. Data: DOJ, CBS News.

The Court has overturned approximately 232 of its own precedents since 1810. Recent reversals include Chevron deference (Loper Bright, 2024), the right to abortion under Roe v. Wade (Dobbs, 2022), and the 90-year limit on firing independent-agency officials (Trump v. Slaughter, 2026).

The Honest Disagreement

Judicial review has defenders and critics across the political spectrum. The debate is about when courts should use the power, not whether they should have it.

The case for judicial review: Legislatures controlled by majorities cannot restrain majority power. Courts enforce rights that are written into the Constitution, insulated from the political pressures that elected officials face. Without judicial review, segregation laws passed by elected majorities would have lasted longer. Brown v. Board of Education was unpopular in parts of the country but strengthened democracy by enforcing equal protection.

The case against judicial activism: Federal judges are appointed for life and are not accountable to voters. When courts overturn laws passed by elected legislatures, they substitute their judgment for the democratic process. Critics argue this gives too much power to unelected officials, especially when the legal reasoning is contested.

Five Fights Testing Judicial Review in 2026

Fight	What courts are deciding	Status
Voting executive order	Whether the president can change election rules by executive action	Key parts struck down (2025-26)
Alabama redistricting	Whether a map found to intentionally discriminate can be reinstated	Map reinstated 6-3
Birthright citizenship	Whether an executive order can deny citizenship to children born on U.S. soil	Struck down 6-3, June 2026
Agency authority	How much power federal agencies keep after Loper Bright ended Chevron	Active across multiple circuits
Nationwide injunctions	Whether a single judge can block a policy across the entire country	Limited by SCOTUS (June 2025)

Each of these fights runs through judicial review. The court’s decision determines whether a government action survives. After Trump v. CASA, that relief often reaches only the plaintiffs unless a court certifies a class, so who is protected can now depend on who filed suit.

What Judicial Review Cannot Do

Judicial review is powerful, but it is not automatic and it is not self-enforcing. Four limits shape how much it can actually restrain a government.

Courts do not act on their own. Judicial review only starts when someone with legal standing (a direct, concrete injury) files a suit, so a policy that no one can sue over can go unchallenged.

A court order is only as strong as compliance. Judges command no police force. When the executive branch slow-walks or ignores an order, the remedy runs through contempt findings and public pressure, not a switch the judge can flip.

Winning in court does not always settle the policy. The administration signed a new birthright-citizenship order in August 2026, weeks after losing at the Supreme Court, which forces the same fight to start again.

Judicial review cuts both ways. The same power that blocks an executive order also lets a court strike down a law that Congress passed and a president signed, which is exactly why people across the spectrum argue about when judges should use it.

Frequently asked questions

Can Congress overturn a Supreme Court decision? Sometimes. If the ruling interprets a statute, Congress can rewrite the law to change the result. If the ruling interprets the Constitution, the only routes are a constitutional amendment or the Court reversing itself later.

What happens if the government ignores a court order? The judge can hold officials in contempt, impose fines, and refer the matter for prosecution. Because courts rely on the executive branch to carry out their orders, sustained defiance becomes a constitutional standoff rather than a routine case.

Do state courts have judicial review too? Yes. State courts can strike down state laws under state constitutions. That is why many redistricting, abortion, and ballot-access fights are decided in state court rather than federal court.

Is judicial review the same as an appeal? No. An appeal asks a higher court to correct legal errors in a specific case. Judicial review asks whether a law or government action is constitutional at all, and its answer can reach far beyond the parties who brought it.

What You Can Do

1. Ask your senators how they will vote on judicial nominations. The Senate confirms every federal judge for life. Ask each of yours, on the record, what standard they apply and whether they will move nominations promptly or stall them.

2. Support the groups litigating these cases. The ACLU, Democracy Forward, and state attorneys general filed most of the 333 active suits. Track the dockets on the Lawfare litigation tracker and back the organizations arguing them.

3. Watch whether court orders are obeyed, not just issued. A ruling only matters if it is enforced. Follow compliance deadlines and contempt findings in cases like the Alien Enemies Act deportations, where a judge found probable cause for criminal contempt.

4. Read the fights closest to home. Start with our coverage of Alabama redistricting and the rule of law and executive power hub.