Judicial review refers to the power of the judiciary to challenge and interpret acts performed by the legislative branch of government. The term may also be used on a broader level to refer to the judicial review of the actions of any branch of government, including those undertaken by the executive. Through judicial review, those courts which display judicial activism may have a significant impact on politics.
Judicial review is also an example of the doctrine of separation of powers. This principle is interpreted diferently across the world, and, as a result, the procedure and scope of judicial review varies from country to country.
Judicial review in the USA
In the USA, the Constitution stated that the Supreme Court and the other federal courts were to consider cases “arising under this Constitution” and some other matters.
The precise impact of these words was not specified until the case of Marbury v. Madison in 1803, where the Supreme Court declared that it had the power to review both federal laws and actions performed by the executive. Fletcher v. Peck, 1810, extended the scope of judicial review and granted the Supreme Court the right to rule on the constitutionality of not only federal but also state laws.
Judicial review in the UK
Similarly, the power of judicial review is not officially recognised under UK law, although this situation has been substantially altered with the advent of the European Union: parliamentary legislation can now be examined before the European Court of Justice, which has the power to overrule legislation if it is found to be in violation of the treaties of Union. Furthermore, judges in the UK may now hear cases under this provision, in order to decide how the ECJ would rule on them. Therefore it could be argued that judges in the UK now have a de facto power of judicial review.
In both the USA and the UK, citizens may obtain redress for a court with regard to abuses of executive power; for example, in January 2008 the Police Federation put pressure on the government by applying for a judicial review of its decision not to backdate officers’ pay awards.
Unlike the USA and UK, the state of judicial review in Switzerland is relatively weak. The Swiss Federal Constitution states that federal statutes and international laws are binding on the Federal Supreme Court. Accordingly, the courts are unable to review the constitutionality of federal statutes.
However, where possible, the courts will construe statutes in such a way that they do not create a conflict with the Constitution. The courts are able to suspend the application of federal statutes that conflict with international law, but tend to exercise this power in moderation.
The increased use of direct democracy- such as referenda- in Switzerland is often given as a reason for the comparitively low use of judicial review.
Federal courts are able to exercise judicial review over cantonal law.
Judicial review has been deemed, by some, necessary for the proper application of legislation or of a constitution. It allows both the third branch of government and a country's citizens to participate in the legislative process.
However, it has also been criticised by those who are wary of judicial independence and activism. While senior members of the judiciary may seek to mirror or even lead public opinion, sometimes they seem to go directly against it. In some cases they antagonise both the public and other branches of government, as with the Supreme Court’s ruling in Texas v. Johnson, 1989, which the president of the time, George Bush, denounced as “wrong, just wrong”.
Moreover, there is also the issue of politicisation: both the Supreme Court and senior judges in Britain have been accused of being too conservative in outlook, generally ascribed to their often limited and homogenous backgrounds.
Ultimately, when utilised to its full extent, judicial review can prove a valuable tool to both the judiciary and ordinary citizens. It forms part of the structure of checks and balances necessary for a democratic government.