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.
Judicial review turns the Constitution from a set of principles into enforceable rules. Without it, the government could pass unconstitutional laws and no one could stop them. With it, any person can go to court and force the government to explain why its actions are legal.
Key facts
- 298 active cases currently challenge the administration in federal courts
- The Supreme Court reverses 71.3% of the cases it hears. Lower courts get it wrong more often than not.
- 35 emergency orders issued by SCOTUS on Trump administration actions
- This power does not belong only to the Supreme Court. A single federal district judge can stop a nationwide policy.
- The Constitution does not explicitly grant this power. It was established by the Supreme Court in 1803.
”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 v. Madison Established This Power 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. But 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 traces the modern expansion of judicial review directly 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
- Government acts. A legislature passes a law, a president signs an executive order, or an agency issues a regulation.
- Someone challenges it. An individual, state, organization, or company files a lawsuit arguing the action violates the Constitution or exceeds legal authority.
- A court reviews it. A judge evaluates whether the action is constitutional. The court may issue an injunction blocking enforcement while the case proceeds.
- 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.
298 Active Cases Are Testing This Power Right Now
Judicial review is not abstract. As of mid-2026, the Lawfare litigation tracker counts 298 active cases challenging administration actions. The Supreme Court has issued 35 emergency orders related to the current administration.
Three developments show why this moment is unusual:
Chevron deference is gone. In June 2024, the Supreme Court overturned Chevron v. Natural Resources Defense Council, the 40-year-old standard that required courts to defer to agency interpretations of ambiguous statutes. Courts now interpret statutes independently. Policy decisions that agencies used to make are now made by judges.
Nationwide injunctions are contested. In Trump v. CASA (June 2025), the Supreme Court ruled that federal courts lack authority to issue universal injunctions. This limits the ability of a single judge to block a policy nationwide.
Voting rules are being decided in court. Federal courts have struck down key parts of a March 2026 executive order on voting. The administration’s response to Alabama redistricting and the Callais ruling are both products of judicial review.
The Supreme Court Reverses 71% of Cases It Hears
The Supreme Court does not take cases to agree with lower courts. Since 2007, the Court has reversed lower court decisions in 71.3% of cases (891 of 1,250). The Fifth Circuit, which covers Texas, Louisiana, and Mississippi, has the highest reversal rate at 80.7%.
| 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 (2024), the right to abortion under Roe v. Wade (2022), and Section 2 of the Voting Rights Act as applied to redistricting (2026).
- 71.3%
- SCOTUS reversal rate (2007-present)
- 80.7%
- Fifth Circuit reversal rate (highest)
- ~232
- Precedents overturned since 1810
Safeguard Against Abuse or Unelected Override?
Judicial review has defenders and critics across the political spectrum. The debate is not about whether courts should have the power. It is about when they should use 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.
”The solution to bad judging is not abandoning judicial review. It is taking judicial reasoning seriously.”
Alexander Kaufman, Democracy, Liberty, and Judicial ReviewFive 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 |
| Alabama redistricting | Whether a map found to intentionally discriminate can be reinstated | Map reinstated 6-3 |
| Birthright citizenship | Whether an EO can deny citizenship to children born in the U.S. | Pending (Trump v. Barbara) |
| Agency authority | How much power federal agencies have after Chevron was overturned | 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 is resolved through judicial review. The court’s decision determines whether a government action survives, and that outcome reaches everyone, not just the parties in the case.
Judicial Review Is Where Constitutional Limits Become Real
Courts can stop government actions that violate the Constitution. That power was established in 1803 and has been used thousands of times since. It affects laws and policies far beyond the courtroom, from who can vote to how agencies regulate to whether executive orders stand.
Judicial review is not something that only matters when the Supreme Court rules. It is happening right now in 298 active cases. The outcomes will determine what the government can and cannot do for years to come.