What happens when nine unelected judges have the final say on the most divisive questions in American life? In this episode of This Constitution, Savannah Eccles Johnston and Matthew Brogdon break down the Supreme Court’s most consequential and contentious tool: judicial review.

They explore how this authority allows nine unelected justices to strike down laws, reshape policy, and act as a final check on Congress and the presidency. But where does this power actually come from? Is it rooted in the Constitution or in political tradition? And does it strengthen or weaken democracy?

Savannah and Matthew examine the origins of judicial review, from the Supremacy Clause to Marbury v. Madison, and how the courts have used this power to decide the nation’s most polarizing issues—from marriage equality to abortion rights. They also unpack the tension between constitutional stability and democratic self-rule, and why judicial review has become both a cornerstone of American government and a lightning rod for controversy.

In This Episode

• (00:00:15) Judicial Review: Introduction and definition
• (00:01:26) Scope and constitutional basis
• (00:03:13) Judicial review in Article III and historical assumptions
• (00:04:01) Marbury v. Madison and early judicial review
• (00:05:25) Hamilton, Federalist 78, and popular sovereignty
• (00:07:05) Jefferson vs. Hamilton: The dead hand of the past
• (00:08:31) Jefferson’s revolutionary perspective
• (00:12:06) Judicial review as upholding the original bargain
• (00:12:47) Amendments and overturning Supreme Court decisions
• (00:15:09) Marbury v. Madison and precedents
• (00:19:01) Frequency and notification of judicial review
• (00:20:22) Political impact of Marbury v. Madison
• (00:23:01) Judicial review and modern controversies
• (00:25:33) Congressional response to Supreme Court decisions
• (00:28:28) The Supreme Court’s aristocratic nature and democratic tension
• (00:29:32) Judicial review as a tool of national majorities
• (00:31:36) Deliberation and the Court’s effect on democracy
• (00:34:20) When should the Court intervene?
• (00:35:31) Origins and alternatives to judicial review
• (00:39:09) Judicial review: Supreme but not final

Notable Quotes

• (00:51) “When judges declare a law unconstitutional, they're saying that the law is in effect, unenforceable.”— Matthew Brogdon
• (01:53) “There's one provision in article six and what's called the Supremacy Clause that tells state judges they're supposed to declare state laws and constitutional provisions unconstitutional, or declare them void if they conflict with a federal law or the federal constitution.”— Matthew Brogdon
• (05:25) “This is something Alexander Hamilton will talk about in Federalist 78, where he will defend judicial review as a necessary check on legislative power, basically, legislative overreach, violation of rights. And this is very interesting.”— Savannah Eccles Johnston
• (00:09:06) “The hardest thing about revolution is ending it.It's creating a stable government. And the way you do that is stability and veneration in the laws” — Savannah Eccles Johnston
• (15:58) “Marbury is the first time the Supreme Court openly exercises the power of judicial review and declares a federal law unconstitutional.”— Matthew Brogdon
• (00:23:10) “Judicial review is the basis for the court being a co-equal branch of government. It’s what makes them powerful—and potentially problematic in a democratic system.” — Savannah Eccles Johnston
• (00:30:06) “Judicial review is a kind of tool of national majorities to discipline states that want to stay out of the prevailing direction in the country.” — Matthew Brogdon
• (00:39:09) “Judicial review is a supreme power—but not a final power.” — Mat