Judicial Review: The Power to Check the Executive and Legislative Branches

Federal Government Checks and Balances Series — Part 2

As part of Mormon Women For Ethical Government’s series on checks and balances within the United States government, we examine federal judicial power to balance the executive and legislative branches.

The judicial branch 

Article 3 of the Constitution established the Supreme Court, and the Judiciary Act of 1789, with subsequent amendments by Congress, established the other areas of the federal judiciary. The judicial branch upholds the laws to which we are all bound. At the federal level, the judiciary is divided into four courts:

• The U.S. Supreme Court is the highest court in the nation. Each of the nine justices is nominated by the executive branch and approved by the legislative branch. Some 7,000 cases are submitted to the Supreme Court each year, from which it chooses 100-150 to adjudicate. The court’s function is to then interpret the Constitution and/or federal law as it pertains to each case.

• The U.S. Courts of Appeals are composed of 13 appellate courts that determine whether the lower courts applied the law accurately and whether proceedings were fair. The appellate courts manage approximately 50,000 cases per year. Ten percent or fewer of the appellate courts’ decisions are appealed to the Supreme Court. Once the highest court — the Supreme Court — decides, no more appeals remain.

• U.S. District Courts, also called trial courts, handle almost all federal civil and criminal cases. In these courts, evidence is presented and testimony is heard. District judges settle disputes by issuing rulings according to federal law and/or the Constitution. There are 94 district courts in the U.S.

• U.S. Bankruptcy Courts include 90 federal courts throughout the nation. Bankruptcy judges decide whether to approve bankruptcy for individuals and corporations in order to give them a “fresh start.”

The power of judicial review

"It is emphatically the province and duty of the judicial department to say what the law is." —  Chief Justice John Marshall

Executive orders issued by the president and laws passed by Congress are subject to review by the judicial branch. This branch considers and rules on the legality and constitutionality of the orders and laws brought before it, a concept known as judicial review. Though the judicial branch’s role is summed up in this singular phrase, the judicial branch’s purview to check the executive and legislative branches is powerful. The Supreme Court holds the authority to deem actions by the legislative and executive branches as illegal and unconstitutional. 

This authority is limited in the Constitution by the "case or controversy" doctrine, which prevents courts from initiating action on their own or issuing advisory opinions before legal cases have been tried. In the context of an actual dispute, judges rely on attorneys and litigants to present thorough evidence and persuasive legal arguments based on prior rulings, known as precedent. With that background, courts strive to come to a just decision.

"By scrutinizing the executive and legislative branches, the judiciary safeguards civil liberties and maintains the integrity of the Constitution." — Eleanor Stratton

Marbury v. Madison — the case that established the power of judicial review

The concept of judicial review was contemplated in our founding documents and by the founders. The Constitution articulates a separation of powers in Articles 1-3, which established the three-branch system. Under this system, the judicial branch is assigned equal power to check and balance the other branches. Early rulings by the Supreme Court clarified the doctrine of separation of powers, including judicial review. Marbury v. Madison is the landmark case that determined what judicial review looks like in practice.

Marbury v. Madison (1803)

This fundamental case explored a presumably small act — a technicality involving the judicial commission of William Marbury by the president and Congress.

In 1801, outgoing President John Adams nominated 16 judges, including Marbury, attempting to maintain Federalist party goals. Congress approved Marbury during the "midnight appointments" before the inauguration of incoming president Thomas Jefferson. Jefferson belonged to the opposing Democratic-Republican party and, after being sworn in, instructed his Secretary of State, James Madison, to withhold Marbury’s commission.

Marbury and his attorney sued the government for the commission, and by 1803 the case had advanced to the Supreme Court. Chief Justice John Marshall recognized the significance of the case and authored the unanimous opinion that the executive branch acted in violation of the Constitution in ignoring Marbury's commission, and also that Congress had exceeded its constitutional authority in passing the Judiciary Act of 1789.

In declaring acts of both the executive and legislative branches unconstitutional, the Supreme Court established the power of judicial review, which is considered one of the foundations of U.S. constitutional law.

Landmark cases involving judicial checks on the executive branch

Youngstown Sheet & Tube Co v. Sawyer (1952)

President Harry Truman believed the steel workers strike might weaken national defense, and he ordered his secretary of commerce to seize and operate all steel mills. When the sheet metal companies’ lawsuit reached the Supreme Court, the justices ruled that a president does not have the power to seize property without congressional approval.

United States v. Nixon (1974)

The Watergate scandal not only ended in the resignation of President Richard Nixon, it also settled an important case about the limits of presidential immunity. In this case, the Supreme Court ruled that the president cannot protect him/herself from overturning evidence in a criminal case using executive immunity as a defense. 

Trump v. United States (2024)

In 2020, then former President Trump was indicted on four charges of conspiracy to overturn an election and false claims of election fraud. This is the only time a U.S. president has been indicted for criminal charges pertaining to his time in office. Lower courts were split on the decision, and the Supreme Court accepted the appealed case. Trump’s legal team claimed immunity citing that the “bulk of the acts” were carried out during his presidency. The Court decided that while a president is not immune from all criminal actions when in office, he does possess presumptive immunity for official acts while serving as president.

Landmark cases involving judicial checks on the legislative branch

Fletcher v. Peck (1810)

Some of Georgia’s state lawmakers accepted bribes from investors in exchange for underpriced land grants. In response, the legislators who replaced their corrupt predecessors passed a state statute revoking the land grants. A few years later, when John Peck bought property on this land and sold it to Robert Fletcher, Fletcher sued Peck for not disclosing an unclean title for the property.

When two renowned attorneys eventually took up the case, the key issue in question pertained to the strength of the contracts clause in the Constitution. The Supreme Court eventually ruled that the contracts clause superseded the state statute to cancel the land grants. Despite the unseemly nature of the original deals, the Supreme Court recognized an individual’s rights to contractual bindings.

This decision underscored a level of protection for individuals from legislative impositions. It also set the precedent that the Supreme Court can deem a law set by a state legislature unconstitutional.

Mistretta v. United States (1989)

The Sentencing Reform Act of 1984 was enacted to set standard sentencing guidelines, thereby mitigating a wide range of sentencing for the same crimes across the states. Not long after the act passed, John Mistretta was indicted on three drug charges but claimed he committed only one. His attorneys moved that Mistretta not be held to the new Sentencing Commission guidelines because its existence was unconstitutional. Mistretta’s team argued that Congress gave excessive judicial power to the Sentencing Commission.

The Supreme Court ultimately ruled in favor of the United States and upheld the constitutionality of the commission. They also commented on separation of powers as not strictly separate, rather overlapping at times.

Speaking up for freedom

The judicial branch’s role in preserving a separation of powers has long contributed to the resiliency of the U.S. government. The power of judicial review upholds individual freedoms and protects the U.S. from unconstitutional laws and tyranny. As citizens, we can recognize and respect this judicial power to check the other two branches of government and uphold our “constitutional federal republic working under principles of democracy.”

When we educate ourselves and others about this fundamental principle and speak up against its threats toward freedom, we practice responsible citizenship. Respecting the role of the judiciary and honoring its rulings demonstrates cooperation with the causes of liberty and justice.

This article was written by Sherilyn Stevenson, lead researcher and writer for Mormon Women for Ethical Government, with Yvette Farnsworth Baker, researcher for Mormon Women for Ethical Government.