Judicial Review, and How to Read a Supreme Court Opinion

Judicial review is the practice of a court declining to give effect to a statute or official act that the court concludes conflicts with the Constitution. It is the most visible feature of American constitutional law, and it is not written down anywhere in the Constitution.

This page covers two things. First, where the practice came from and what limits it. Second, in practical detail, how to open a court opinion and understand what you are looking at.

A Power the Text Does Not Grant

Article III vests “the judicial Power” in the Supreme Court and in lower courts Congress creates, and extends it to cases arising under the Constitution and the laws of the United States. Article VI makes the Constitution the supreme law and binds state judges to it. Neither says what a court should do when a statute and the Constitution point in different directions. You can read the article itself at constitution.congress.gov.

The answer arrived in Marbury v. Madison (1803). The Court concluded that a provision of the Judiciary Act of 1789 had given it a form of original jurisdiction that Article III did not permit, and so declined to apply the statute. The sentence carrying the reasoning has been quoted ever since:

It is emphatically the province and duty of the judicial department to say what the law is.

The idea was not invented that day. Federalist No. 78 had argued during the ratification debate that courts must treat the Constitution as superior law, while describing the judiciary as the branch least dangerous to political rights because it commands neither force nor budget. Martin v. Hunter’s Lessee (1816) extended the practice in another direction, confirming that the Supreme Court may review state court judgments on questions of federal law. Without that, each state could have settled the meaning of the Constitution for itself.

What Limits It

Courts do not review laws on request. Article III extends the judicial power to “Cases” and “Controversies,” which federal courts have long read to mean real disputes between opposing parties with something concrete at stake. Federal courts do not issue advisory opinions on whether a proposed bill would be constitutional.

Several doctrines follow from that limit. A party must have standing, meaning a real injury, traceable to the challenged conduct, that a court could actually redress. A case may be dismissed as moot if the dispute ends before decision, or as unripe if the harm is still speculative. The practical consequence is that a constitutional question waits until someone with a genuine stake brings it, which can take years or decades.

Congress holds checks of its own. It sets the size and jurisdiction of the lower courts, confirms judges, and controls appropriations. Those relationships are laid out on our page about the separation of powers.

How the Federal Courts Are Arranged

Most federal litigation starts in one of the 94 district courts, the trial courts of the federal system, where evidence is heard and facts are found. Appeals go to one of the 13 courts of appeals, which review the legal rulings below rather than retrying the case. Above them sits the Supreme Court, whose membership has been fixed by statute at nine since 1869.

Nearly all of the Supreme Court’s cases arrive on a writ of certiorari, a discretionary decision to hear the case. By long practice, four justices must agree to grant one. Thousands of petitions are filed each term and only a small fraction are taken. State court systems run in parallel and decide the great majority of all litigation in the country. The federal judiciary describes its own structure at uscourts.gov.

The Parts of an Opinion

Open almost any decision and you will find the same components in the same order.

• The caption names the parties, the court below, the docket number, and the dates of argument and decision.
• The syllabus is the summary at the front. It is prepared by the Court’s Reporter of Decisions for the reader’s convenience and, as the Court states on the document itself, it is not part of the opinion and carries no legal weight. Use it for orientation; never quote it as the holding.
• The opinion of the Court is the majority opinion, the reasoning a majority of the participating justices joined. Where no single opinion drew a majority, the controlling one is called a plurality and its precedential force is narrower.
• A concurrence agrees with the outcome. A justice who joins the majority and also writes separately is usually adding emphasis or a qualification. A justice “concurring in the judgment” agrees on the result but not on the reasoning that produced it.
• A dissent disagrees with the outcome. It is not law, though it often frames the argument that later cases take up.
• Per curiam means “by the court” and marks an unsigned opinion, usually a short one.

Holding and Dicta

The holding is the legal rule the court applied to the facts in order to decide the case. That is what binds lower courts. Dicta, from obiter dictum or “said in passing,” are statements not necessary to the result: illustrations, replies to a dissent, observations about cases not before the court. Dicta can be persuasive and get quoted constantly, but a later court is free to set them aside.

Telling the two apart is a skill rather than a mechanical test, and lawyers argue about it in nearly every brief. A workable first pass is to ask whether the case could have come out the same way with the sentence deleted. If it could, the sentence is probably dicta. Terms like these are collected in our glossary.

How Citations Work

A case citation is an address. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), reads as volume 5 of the United States Reports, beginning at page 137, decided in 1803. The parenthetical “1 Cranch” appears because the earliest volumes were published privately and are still identified by their reporters’ names.

A second page number, called a pincite, points to the page a quotation actually came from: the sentence quoted above sits at 5 U.S. at 177. Decisions of the courts of appeals and the district courts appear in separate reporter series, and very recent Supreme Court decisions circulate as slip opinions before the bound volume is printed, which is why they are sometimes cited by docket number instead.

Where to Find Opinions

Slip opinions, orders, and argument calendars are published by the Court itself at supremecourt.gov. Cornell Law School’s Legal Information Institute hosts a searchable collection of Supreme Court decisions with plain-language summaries of many of them. More places to look are listed on our primary sources page.

Reading a decision from start to finish is less daunting than it sounds. Skim the syllabus for orientation, read the majority’s statement of the facts, find the paragraph where it states the question presented, and only then work through the analysis. If you want to know why two judges reading the same clause reach different results, our page on methods of interpretation takes that up directly.