A report on Judicial review

The High Court of Australia. Under the Constitution of Australia, the judiciary forms part of the separation of powers, with executive or legislative actions subject to review by the judiciary. Laws, acts and governmental actions that are incompatible with a higher authority (e.g. the Constitution) can be reviewed and overturned

Process under which executive, legislative and administrative actions are subject to review by the judiciary.

- Judicial review
The High Court of Australia. Under the Constitution of Australia, the judiciary forms part of the separation of powers, with executive or legislative actions subject to review by the judiciary. Laws, acts and governmental actions that are incompatible with a higher authority (e.g. the Constitution) can be reviewed and overturned

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John Locke

Separation of powers

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Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches.

Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches.

John Locke
Montesquieu
George Washington at Constitutional Convention of 1787, signing of U.S. Constitution

It also has the power of judicial review, allowing it to review the constitutionality of laws.

Constitution of the Year XII (First French Republic)

Constitution

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Aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed.

Aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed.

Constitution of the Year XII (First French Republic)
Constitution of the Kingdom of Naples in 1848.
Detail from Hammurabi's stele shows him receiving the laws of Babylon from the seated sun deity.
Diagram illustrating the classification of constitutions by Aristotle.
Third volume of the compilation of Catalan Constitutions of 1585
The Cossack Constitution of Pylyp Orlyk, 1710.
A painting depicting George Washington at the Constitutional Convention of 1787 signing of the U.S. Constitution
Constitution of May 3, 1791 (painting by Jan Matejko, 1891). Polish King Stanisław August (left, in regal ermine-trimmed cloak), enters St. John's Cathedral, where Sejm deputies will swear to uphold the new Constitution; in background, Warsaw's Royal Castle, where the Constitution has just been adopted.
Presidential copy of the Russian Constitution.
Magna Carta
United States Constitution

The term as used by Blackstone was not for a legal text, nor did he intend to include the later American concept of judicial review: "for that were to set the judicial power above that of the legislature, which would be subversive of all government".

The Commonwealth Law Courts Building in Melbourne, the location of the Melbourne branches of the Federal Circuit Court of Australia, the Federal Court of Australia, the Family Court of Australia, as well as occasional High Court of Australia sittings

Judiciary

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System of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law in legal cases.

System of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law in legal cases.

The Commonwealth Law Courts Building in Melbourne, the location of the Melbourne branches of the Federal Circuit Court of Australia, the Federal Court of Australia, the Family Court of Australia, as well as occasional High Court of Australia sittings
Corpus Iuris Civilis, 1607
Gratian
Lady Justice (Latin: Justicia), symbol of the judiciary. Statue at Shelby County Courthouse, Memphis, Tennessee

In many jurisdictions the judicial branch has the power to change laws through the process of judicial review.

Parliamentary sovereignty

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Concept in the constitutional law of some parliamentary democracies.

Concept in the constitutional law of some parliamentary democracies.

In some countries, parliamentary sovereignty may be contrasted with separation of powers, which limits the legislature's scope often to general law-making and makes it subject to external judicial review, where laws passed by the legislature may be declared invalid in certain circumstances.

An 1808 engraving of Chief Justice John Marshall by French portrait painter Charles Balthazar Julien Févret de Saint-Mémin

Marbury v. Madison

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Landmark U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws and statutes that they find to violate the Constitution of the United States.

Landmark U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws and statutes that they find to violate the Constitution of the United States.

An 1808 engraving of Chief Justice John Marshall by French portrait painter Charles Balthazar Julien Févret de Saint-Mémin
The U.S. Capitol, home of the U.S. Congress and also where the U.S. Supreme Court convened from 1801 until the Supreme Court Building's completion in 1935.
Marshall's famous line from Marbury v. Madison on American federal courts' power to interpret the law, now inscribed on the wall of the U.S. Supreme Court Building in Washington, D.C.
Chief justice John Marshall, as painted by Henry Inman in 1832, after having presided over the American federal judiciary for over 30 years
The subpoena duces tecum (order to bring items as evidence) issued to President Richard Nixon that was the center of the dispute in the 1974 judicial review case United States v. Nixon

After ruling that it conflicted with the Constitution, the Court struck down Section 13 of the Judiciary Act in the U.S. Supreme Court's first ever declaration of the power of judicial review.

Supreme Court of the United States

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Highest court in the federal judiciary of the United States.

Highest court in the federal judiciary of the United States.

The Court lacked its own building until 1935; from 1791 to 1801, it met in Philadelphia's City Hall.
The Royal Exchange, New York City, the first meeting place of the Supreme Court
Chief Justice Marshall (1801–1835)
The U.S. Supreme Court Building, current home of the Supreme Court, which opened in 1935.
The Hughes Court in 1937, photographed by Erich Salomon. Members include Chief Justice Charles Evans Hughes (center), Louis Brandeis, Benjamin N. Cardozo, Harlan Stone, Owen Roberts, and the "Four Horsemen" Pierce Butler, James Clark McReynolds, George Sutherland, and Willis Van Devanter, who opposed New Deal policies.
Justices of the Supreme Court with President George W. Bush (center-right) in October 2005. The justices (left to right) are: Ruth Bader Ginsburg, David Souter, Antonin Scalia, John Paul Stevens, John Roberts, Sandra Day O'Connor, Anthony Kennedy, Clarence Thomas, and Stephen Breyer
John Roberts giving testimony before the Senate Judiciary Committee during the 2005 hearings on his nomination to be chief justice
Ruth Bader Ginsburg giving testimony before the Senate Judiciary Committee during the 1993 hearings on her nomination to be an associate justice
The interior of the United States Supreme Court
The first four female justices: O'Connor, Sotomayor, Ginsburg, and Kagan.
The current Roberts Court justices (since October 2020): Front row (left to right): Samuel Alito, Clarence Thomas, Chief Justice John Roberts, Stephen Breyer, and Sonia Sotomayor. Back row (left to right): Brett Kavanaugh, Elena Kagan, Neil Gorsuch, and Amy Coney Barrett.
Percentage of cases decided unanimously and by a one-vote margin from 1971 to 2016
The present U.S. Supreme Court building as viewed from the front
From the 1860s until the 1930s, the court sat in the Old Senate Chamber of the U.S. Capitol.
Seth P. Waxman at oral argument presents his case and answers questions from the justices.
Inscription on the wall of the Supreme Court Building from Marbury v. Madison, in which Chief Justice John Marshall outlined the concept of judicial review

The power of judicial review, in fact, is nowhere mentioned in it.

The Stenbockska Palace is the former seat of the Supreme Administrative Court of Sweden

Administrative law

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Division of law that governs the activities of executive branch agencies of government.

Division of law that governs the activities of executive branch agencies of government.

The Stenbockska Palace is the former seat of the Supreme Administrative Court of Sweden
American administrative law often involves the regulatory activities of so-called "independent agencies", such as the Federal Trade Commission, whose headquarters is shown above.

Generally speaking, most countries that follow the principles of common law have developed procedures for judicial review that limit the reviewability of decisions made by administrative law bodies.

U.S. Supreme Court building.

Judicial review in the United States

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Legal power of a court to determine if a statute, treaty, or administrative regulation contradicts or violates the provisions of existing law, a State Constitution, or ultimately the United States Constitution.

Legal power of a court to determine if a statute, treaty, or administrative regulation contradicts or violates the provisions of existing law, a State Constitution, or ultimately the United States Constitution.

U.S. Supreme Court building.

While the U.S. Constitution does not explicitly define the power of judicial review, the authority for judicial review in the United States has been inferred from the structure, provisions, and history of the Constitution.

Due process

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Legal requirement that the state must respect all legal rights that are owed to a person.

Legal requirement that the state must respect all legal rights that are owed to a person.

Orth points out that this is generally attributed to the rise of the doctrine of parliamentary supremacy in the United Kingdom, which was accompanied by hostility towards judicial review as an undemocratic foreign invention.

Wilmington, Delaware is the incorporation capital of the United States. Delaware has largely abolished ultra vires in relation to corporations under the Delaware General Corporation Law.

Ultra vires

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Latin phrase used in law to describe an act which requires legal authority but is done without it.

Latin phrase used in law to describe an act which requires legal authority but is done without it.

Wilmington, Delaware is the incorporation capital of the United States. Delaware has largely abolished ultra vires in relation to corporations under the Delaware General Corporation Law.

In administrative law, an act may be judicially reviewable for ultra vires in a narrow or broad sense.