A History of Judicial Review: The Power of Precedents

This article challenges the convention view regarding the history of the judicial review power of the Supreme Court of the United States. Most scholars argue that the case of Marbury v. Madison established the power of the Supreme Court. However, a careful reading of the Supreme Court cases proves this is far from accurate. When Chief Justice John Marshall rendered his decision in 1803, it was entirely ignored by both the executive branch of the United States government and the public at large. It was not until the case of Cooper v. Aaron (1958) that the judicial review power of the Supreme Court came to be supported by both the executive branch and general public. The Supreme Court secured this power by consistently referring to the case of Marbury v. Madison and its judicial review power. Thus, it was the power of ‘precedents’ that eventually confirmed the power of the judicial review of the U.S. Supreme Court.