Judicial review is a legal term to describe the ability of the courts to subject executive and legislative actions to review (and possible invalidation). In this light, judicial review amounts only to a negative power.
In some countries, only executive powers can be judicially reviewed by a courts - in the United Kingdom and New Zealand for instance, the doctrine of parliamentary supremacy means that legislation cannot be set aside. In many countries however, notably in the US, the courts play a role in determining the constitutionality of legislation.
Review of legislation in the United States
- It is emphatically the province and duty of the judicial department to say what the law is.
If, for example, a law is unconstitutional, then courts should not enforce it.
Review of executive decision making
In Commonwealth countries, decisions made by Ministers and other members of the executive branch can be subjected to a judicial review. The court will check to ensure that the decision maker has not acted ultra vires (beyond their authority), with any procedural impropriety, or in breach of any legitimate expectation. The courts will not impose their own decision, but rather will ensure that the process that the decision maker followed was legitimate.
Thomas Jefferson wrote of the doctrine of judicial review in 1804:
The opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature & executive also in their spheres, would make the judiciary a despotic branch.
He wrote on the topic for many years. In 1820 he wrote:
You seem ... to consider the judges as the ultimate arbiters of all constitutional questions: a very dangerous doctrine indeed and one which would place us under the despotism of an Oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privileges of their corps.
He was of the belief that because judges are not elected, this kind of power would amount to a judicial tyranny, and he was of that belief for the rest of his life.