why judicial review is important essay

What Is Judicial Review?

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Judicial Review is the power of the U.S. Supreme Court to review laws and actions from Congress and the President to determine whether they are constitutional. This is part of the checks and balances that the three branches of the federal government use in order to limit each other and ensure a balance of power.

Key Takeaways: Judicial Review

• Judicial review is the power of the U.S. Supreme Court to decide whether a law or decision by the legislative or executive branches of federal government, or any court or agency of the state governments is constitutional.
• Judicial review is a key to the doctrine of balance of power based on a system of “checks and balances” between the three branches of the federal government.
• The power of judicial review was established in the 1803 Supreme Court case of Marbury v. Madison . 

Judicial review is the fundamental principle of the U.S. system of federal government , and it means that all actions of the executive and legislative branches of government are subject to review and possible invalidation by the judiciary branch . In applying the doctrine of judicial review, the U.S. Supreme Court plays a role in ensuring that the other branches of government abide by the U.S. Constitution. In this manner, judicial review is a vital element in the separation of powers between the three branches of government .

Judicial review was established in the landmark Supreme Court decision of Marbury v. Madison , which included the defining passage from Chief Justice John Marshall: “It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.”

Marbury vs. Madison and Judicial Review

The power of the Supreme Court to declare an act of the legislative or executive branches to be in violation of the Constitution through judicial review is not found in the text of the Constitution itself. Instead, the Court itself established the doctrine in the 1803 case of Marbury v. Madison .

On February 13, 1801, outgoing Federalist President John Adams signed the Judiciary Act of 1801, restructuring the U.S. federal court system . As one of his last acts before leaving office, Adams appointed 16 (mostly Federalist-leaning) judges to preside over new federal district courts created by the Judiciary Act.

However, a thorny issue arose when new Anti-Federalist President Thomas Jefferson ’s Secretary of State, James Madison refused to deliver official commissions to the judges Adams had appointed. One of these blocked “ Midnight Judges ,” William Marbury, appealed Madison’s action to the Supreme Court in the landmark case of Marbury v. Madison , 

Marbury asked the Supreme Court to issue a writ of mandamus ordering the commission be delivered based on the Judiciary Act of 1789. However, Chief Justice of the Supreme Court John Marshall ruled that the portion of the Judiciary Act of 1789 allowing for writs of mandamus was unconstitutional.

This ruling established the precedent of judicial branch of the government to declare a law unconstitutional. This decision was a key in helping to place the judicial branch on a more even footing with the legislative and the executive branches. As Justice Marshall wrote:

“It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.”

Expansion of Judicial Review

Over the years, the US Supreme Court has made a number of rulings that have struck down laws and executive actions as unconstitutional. In fact, they have been able to expand their powers of judicial review.

For example, in the 1821 case of Cohens v. Virginia , the Supreme Court expanded its power of constitutional review to include the decisions of state criminal courts.

In Cooper v. Aaron in 1958, the Supreme Court expanded the power so that it could deem any action of any branch of a state's government to be unconstitutional.

Examples of Judicial Review in Practice

Over the decades, the Supreme Court has exercised its power of judicial review in overturning hundreds of lower court cases. The following are just a few examples of such landmark cases:

Roe v. Wade (1973): The Supreme Court ruled that state laws prohibiting abortion were unconstitutional. The Court held that a woman's right to an abortion fell within the right to privacy as protected by the Fourteenth Amendment . The Court’s ruling affected the laws of 46 states. In a larger sense, Roe v. Wade confirmed that the Supreme Court’s appellate jurisdiction extended to cases affecting women’s reproductive rights, such as contraception.

Loving v. Virginia (1967): State laws prohibiting interracial marriage were struck down. In its unanimous decision, the Court held that distinctions drawn in such laws were generally “odious to a free people” and were subject to “the most rigid scrutiny” under the Equal Protection Clause of the Constitution. The Court found that the Virginia law in question had no purpose other than “invidious racial discrimination.”

Citizens United v. Federal Election Commission (2010): In a decision that remains controversial today, the Supreme Court ruled laws restricting spending by corporations on federal election advertising unconstitutional. In the decision, an ideologically divided 5-to-4 majority of justices held that under the First Amendment corporate funding of political advertisements in candidate elections cannot be limited.

Obergefell v. Hodges (2015): Again wading into controversy-swollen waters, the Supreme Court found state laws banning same-sex marriage to be unconstitutional. By a 5-to-4 vote, the Court held that the Due Process of Law Clause of the Fourteenth Amendment protects the right to marry as a fundamental liberty and that the protection applies to same-sex couples in the same way it applies to opposite-sex couples. In addition, the Court held that while the First Amendment protects the rights of religious organizations to adhere to their principles, it does not allow states to deny same-sex couples the right to marry on the same terms as those for opposite-sex couples.

Updated by Robert Longley

• Republic vs. Democracy: What Is the Difference?
• Marbury v. Madison
• The Judiciary Act of 1801 and the Midnight Judges
• 7 Important Supreme Court Cases
• Constitutional Law: Definition and Function
• Biography of John Marshall, Influential Supreme Court Justice
• Overview of United States Government and Politics
• Separation of Powers: A System of Checks and Balances
• The Original Jurisdiction of the US Supreme Court
• The U.S. Constitution
• National Supremacy and the Constitution as Law of the Land
• Current Justices of the U.S. Supreme Court
• 5 Ways to Change the US Constitution Without the Amendment Process
• Basic Structure of the US Government
• What Is Nullification? Definition and Examples
• What Is Judicial Activism?

A Summary of Why We Need More Judicial Activism

Seth Robertson

Mar 24, 2014, 8:31 AM

By Suzanna Sherry, Herman O. Loewenstein Professor of Law

In this piece, Suzanna Sherry summarizes her essay, “Why We Need More Judicial Activism.” The full version of the essay will appear in a collection Sherry has co-edited with Giorgi Areshidze and Paul Carrese to be released in 2014 by SUNY Press. Sherry wrote this summary for the quarterly legal journal Green Bag , which devoted part of its summer 2013 edition to articles commenting on her essay. She characterizes the essay as “a rhetorical call to arms and an embrace of judicial activism.”

Too much of a good thing can be bad, and democracy is no exception. In the United States, the antidote to what the drafters of the Constitution called “the excess of democracy” is judicial review: unelected, life-tenured federal judges with power to invalidate the actions of the more democratic branches of government. Lately, judicial review has come under fire. Many on both sides of the political aisle accuse the Supreme Court of being overly activist and insufficiently deferential to the elected representatives of the people. Taking the Constitution away from the courts—and giving it back to the people—has become a rallying cry. But those who criticize the courts on this ground misunderstand the proper role of the judiciary. The courts should stand in the way of democratic majorities, in order to keep majority rule from degenerating into majority tyranny. In doing so, the courts are bound to err on one side or the other from time to time. It is much better for the health of our constitutional democracy if they err on the side of activism, striking down too many laws rather than too few.

In this forthcoming essay defending judicial activism, I begin by defining two slippery and often misused concepts, judicial review and judicial activism, and briefly survey the recent attacks on judicial activism. I then turn to supporting my claim that we need more judicial activism, resting my argument on three grounds. First, constitutional theory suggests a need for judicial oversight of the popular branches. Second, our own constitutional history confirms that the founding generation—the drafters of our Constitution—saw a need for a strong bulwark against majority tyranny. Finally, an examination of constitutional practice shows that too little activism produces worse consequences than does too much. If we cannot assure that the judges tread the perfect middle ground (and we cannot), it is better to have an overly aggressive judiciary than an overly restrained one.

Judicial review is not judicial supremacy. Judicial review allows courts an equal say with the other branches, not the supreme word. Courts are the final arbiter of the Constitution only to the extent that they hold a law unconstitutional, and even then only because they act last in time, not because their will is supreme. If judicial review is simply the implementation of courts’ equal participation in government, what, then, is judicial activism? To avoid becoming mired in political squabbles, we need a definition of judicial activism with no political valence. Judicial activism occurs any time the judiciary strikes down an action of the popular branches, whether state or federal, legislative or executive. Judicial review, in other words, produces one of two possible results: If the court invalidates the government action it is reviewing, then it is being activist; if it upholds the action, it is not.

Under that definition, and because the Court is not perfect, the question becomes whether we prefer a Supreme Court that strikes down too many laws or one that strikes down too few. Many contemporary constitutional scholars favor a deferential Court that invalidates too few. I suggest that we are better off with an activist Court that strikes down too many.

As many scholars have previously argued, judicial review is a safeguard against the tyranny of the majority, ensuring that our Constitution protects liberty as well as democracy. And, indeed, the founding generation expected judicial review to operate as just such a protection against democratic majorities. A Court that is too deferential cannot fulfill that role.

More significant, however, is the historical record of judicial review. Although it is difficult to find consensus about much of what the Supreme Court does, there are some cases that are universally condemned. Those cases offer a unique lens through which we can evaluate the relative merits of deference and activism: Are most of those cases—the Court’s greatest mistakes, as it were—overly activist or overly deferential? It turns out that virtually all of them are cases in which an overly deferential Court failed to invalidate a governmental action.1

When the Court fails to act—instead deferring to the elected branches—it abdicates its role as guardian of enduring principles against the temporary passions and prejudices of popular majorities. It is thus no surprise that with historical hindsight we sometimes come to regret those passions and prejudices and fault the Court for its passivity.

Ideally, of course, the Court should be like Baby Bear: It should get everything just right, engaging in activism when, and only when, We the People act in ways that we will later consider shameful or regrettable. But that perfection is impossible, and so we must choose between a Court that views its role narrowly and a Court that views its role broadly, between a more deferential Court and a more activist Court. Both kinds of Court will sometimes be controversial, and both will make mistakes. But history teaches us that the cases in which a deferential Court fails to invalidate governmental acts are worse. Only a Court inclined toward activism will vigilantly avoid such cases, and hence we need more judicial activism.

1 The essay lists the following as universally condemned cases (in chronological order): Bradwell v. State , 16 Wall. (83 U.S.) 130 (1873); Minor v. Happersett , 21 Wall. (88 U.S.) 162 (1874); Plessy v. Ferguson , 163 U.S. 537 (1896); Abrams v. U.S. , 250 U.S. 616 (1919); Schenck v. U.S. , 249 U.S. 47 (1919); Frohwerk v. U.S. , 249 U.S. 204 (1919); Debs v. U.S ., 249 U.S. 211 (1919); Buck v. Bell , 274 U.S. 200 (1927); Minersville School Dist. v. Gobitis , 310 U.S. 586 (1940); Hirabayashi v. U.S. , 320 U.S. 81 (1943); and Korematsu v. U.S. , 323 U.S. 214 (1944). Cases over which there is significant division, such as Roe v. Wade , 410 U.S. 113 (1973), and Lochner v. New York , 198 U.S. 45 (1905), are excluded. Dred Scott v. Sandford , 60 U.S. 393 (1856), and Bush v. Gore , 531 U.S. 98 (2000), are also excluded, on two grounds: They ultimately had little or no real-world effect; and they were products of a Court attempting to save the nation from constitutional crises, which is bound to increase the likelihood of an erroneous decision. Even if Dred Scott and Bush v. Gore are included, only two of 13 reviled cases are activist while 11 are deferential.

Reprinted from 16 Green Bag 2d 449 (2013), “Micro-Symposium: Sherry’s ‘Judicial Activism.’”

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The power of judicial review, what is judicial review.

In America, judicial review refers to the power of the courts to examine laws and other government actions to determine if they violate or contradict previous laws, the state’s constitution, or the federal constitution. If a law is declared to be unconstitutional, it is overturned (or “struck down”) in whole or in part.

Judicial review is a vital and influential power that allows the judicial branch of the government to prevent local, state, and federal governments from taking unconstitutional actions.

While the Supreme Court has historically attempted to use its power to overturn laws as a last resort in cases where the law’s unconstitutionality is clear, the looming threat of judicial review influences legislators as they craft bills and regulations.

What Gives Courts the Power of Judicial Review?

Judicial review is not explicitly defined in the United States Constitution. Instead, it’s strongly implied when certain passages are considered together. The judicial system is given the final authority to determine which law to uphold, and in Article IV , the Constitution is named the “ supreme Law of the Land .” When combined, these elements seem to give courts the duty to uphold the Constitution over any contradictory laws whenever a discrepancy appears.

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Did the Framers Intend Judicial Review?

Despite the lack of an explicit passage outlining the power of judicial review, modern scholars think that the framers of the Constitution very much intended this power to exist. The framers spoke a great deal about judicial review during the Constitutional Convention and during state ratification debates. The Federalist Papers referred to the concept several times, most extensively in Federalist no. 78 and Federalist no. 80. 

Additionally, six states explicitly stated that they thought that federal courts had the power to review the constitutionality of laws in their responses to the Kentucky and Virginia Resolutions in 1798. In other words, nearly half of the original thirteen states interpreted the Constitution as granting the judiciary the power of judicial review a scant handful of years after it was written and well before  Marbury v Madison .

Prior to Marbury v Madison

Federal courts examined the constitutionality of federal statutes several times before 1803, but no active law was overturned before  Marbury v Madison . In  Hayburn’s Case , decided in 1792, three federal circuit courts ruled that the same law was unconstitutional. The law delegated the review of pension applications to circuit court judges. These court decisions were appealed to the Supreme Court, but the law was repealed by legislators before the appeal could take place.

Judicial review of federal legislation occurred in 1796 in  Hylton v United States , but the Supreme Court held that the law in question was constitutional. The 1796 Supreme Court did strike down a Virginia statute concerning pre-Revolutionary War debts, finding the law in question contrary to a peace treaty between the US and Great Britain. Under the Constitution’s Supremacy Clause , the court struck the law down.

Between 1798 and 1800, the ruling in  Marbury v Madison  was foreshadowed clearly. The findings in the 1798 case  Hollingsworth v Virginia  relied on an interpretation of the Eleventh Amendment’s limitations on the jurisdiction that strongly implied that the Supreme Court would find the Judiciary Act of 1789 unconstitutional. 

Justice Chase penned the opinion in  Cooper v Telfair  in 1800 and included a statement that indicated that most judges felt that the Supreme Court had the power to find a federal law unconstitutional. However, it had not done so yet. The power was not exercised until  Marbury v Madison  in 1803.

Marbury v Madison

In 1803, the Marshall court struck down the Judiciary Act of 1789. The law gave the Supreme Court the power to issue writs of mandamus that would force courts or officials to exercise their duties. Article III of the Constitution directly stated that the Supreme Court would have appellate jurisdiction over all but a very narrow subset of cases.  Marbury v Madison  held that the Judiciary Act of 1789 was unconstitutional. The Marshall court interpreted the Judiciary Act of 1789 as giving the court original jurisdiction over cases where a petitioner sought the court to issue a writ of mandamus.

Legal scholars have lauded the politics behind the exact ruling reached in  Marbury v Madison  for centuries. While the Supreme Court struck down the Judiciary Act, it did so in a way that benefited the incumbent administration. This gave little incentive for the administrative branch of the government to challenge the ruling in a way that would weaken the nascent Supreme Court’s power.

Some scholars theorize that the ruling was the only one that would have been enforced, as had the Supreme Court upheld the Judiciary Act of 1789 and issued a writ of mandamus, the Jefferson administration would have simply ignored the writ and weakened the Supreme Court forever.

Stare Decisis

Once  Marbury v Madison  was decided, judicial review became enshrined in law by a practice called stare decisis. Under stare decisis, courts attempt to let decisions and legal actions made by previous courts stand unless there’s a very strong reason to overturn them. The more a decision or action is relied upon for precedent, the less likely a future court is to overturn it.

For centuries, judicial review has been a key part of United States lawmaking and court cases. Even if something changed dramatically in our interpretation of the constitution that caused legal scholars to stop thinking that the constitution implied the power of judicial review, it’s doubtful that any court would overturn judicial review without a constitutional amendment.

Judicial Review Throughout History

After Marbury v Madison , the Supreme Court did not strike down a federal law as unconstitutional for fifty years. While the fear of judicial review being challenged and potentially overturned likely had something to do with this, it’s also worth noting that many of the framers of the constitution were alive during many of these fifty years and that legislators were respectful of the supremacy of the newly enshrined constitution. The Supreme Court did, however, hold that some state law was unconstitutional and had no qualms about using its judicial supremacy to strike such legislation down.

Dred Scott v Sandford

The next law to be struck down as unconstitutional was the Missouri Compromise, which outlined which new territories added to the United States would allow slavery. The case,  Dred Scott v Sandford,  was heard in 1857 and held that the United States Constitution never intended anyone of African descent to be considered a citizen of the United States. The Civil War occurred four years later.

Historians often point to the  Dred Scott  decision as one of the turning points in the rising tension between slaveholding states and the free North. In 1865, the 13th amendment overturned  Dred Scott  by abolishing slavery and explicitly granting citizenship to all persons born or naturalized in the United States .

Modern Judicial Review

Judicial review is a cornerstone of the modern United States. By 2017, 182 federal statutes had been held unconstitutional in whole or in part. Justices have traditionally erred on the side of caution and attempted to exercise the power of judicial review as a last resort.

That said, the court’s history of striking down laws suggests that either lawmakers are being more brazen in their efforts to skirt the edges of what the constitution allows, or the Supreme Court is more willing to step in and intercede on edge cases. Modern political discussions surrounding abortion , gun control , and religious freedom often center around the Supreme Court’s constitutional interpretation and the amendments that surround those issues.

Recent applications of judicial review include:

• Citizens United v Federal Election Commission  (2010), in which the court struck down a law that interfered with the ability of corporations and associations to spend money on election advertising.
• National Federation of Independent Business v Sebelius  (2012), in which the court upheld the constitutionality of much of the Patient Protection and Affordable Health Care Act, sometimes called “Obamacare.”

The Court’s Reluctance To Strike Down Laws

In general, the Supreme Court has attempted to avoid ruling on the constitutionality of a law if it can decide the issue before it by any other means. When it must challenge the constitutionality of a law, it attempts to do so in the most limited way possible, striking down as little of the law as it can. Justice Brandeis famously outlined seven rules that the Supreme Court tends to follow when it reviews laws:

• The court requires a live, contentious case before it will rule.
• It will not issue opinions in advance of a case.
• It will interpret the constitution as narrowly as it can.
• A ruling on the constitutionality of a law is only used as a last resort if other factors cannot decide the case.
• One of the petitioners in the case must have actually been adversely affected by the unconstitutional law.
• Someone who benefits from a law cannot challenge its constitutionality.
• The law will be interpreted in the most favorable way regarding its constitutionality.

Preventing Judicial Review

Under Article III of the Constitution, Congress can curtail the Supreme Court’s appellate jurisdiction. This means that Congress can limit the authority of the Supreme Court to hear cases regarding certain laws. This power has occasionally been utilized, although not always successfully. Notably, the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 were ruled unconstitutional despite language in both laws that attempted to limit their ability to be reviewed by courts.

Alicia Reynolds

One response.

This is an unbalanced view of what is clearly a substantial flaw in the American system of governance. The notion that 5 justices can overrule the House and the Senate and the President is absurd and objectionable on the ground that there are much more cooperative ways to deal with mistakes in statutes … and in readings of a 18th century document that has produced innumerable embarrassing judgments.

Clean this up! Please!

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Majority Rule, Minority Rights: The Constitution and Court Cases

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Article III, Section 1:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

One key feature of the federal judicial power is the power of judicial review, the authority of federal courts to declare that federal or state government actions violate the Constitution. While judicial review is now one of the distinctive features of United States constitutional law, the Constitution does not expressly grant federal courts power to declare government actions unconstitutional. However, the historical record from the Founding and the early years of the Republic suggests that those who framed and ratified the Constitution were aware of judicial review, and that some favored granting courts that power.

The concept of judicial review was already established at the time of the Founding. The Privy Council had employed a limited form of judicial review to review colonial legislation and its validity under the colonial charters. 1 Footnote Julius Goebel , Antecedents and Beginnings to 1801, History of the Supreme Court of the United States 60–95 (1971) . There were several instances known to the Framers of state court invalidation of state legislation as inconsistent with state constitutions. 2 Footnote Id. at 96–142 . Practically all of the Framers who expressed an opinion on the issue in the Convention appear to have assumed and welcomed the existence of court review of the constitutionality of legislation. 3 Footnote 1 Max Farrand , The Framing of the Constitution of the United States 97–98 (1913) (Gerry), 109 (King); 2 Max Farrand , The Framing of the Constitution of the United States 28 (1913) (Morris and perhaps Sherman), 73 (Wilson), 75 (Strong, but the remark is ambiguous), 76 (Martin), 78 (Mason), 79 (Gorham, but ambiguous), 80 (Rutledge), 92–93 (Madison), 248 (Pinckney), 299 (Morris), 376 (Williamson), 391 (Wilson), 428 (Rutledge), 430 (Madison), 440 (Madison), 589 (Madison); 3 Max Farrand , The Framing of the Constitution of the United States 220 (1913) (Martin). The only expressed opposition to judicial review came from Mercer with a weak seconding from Dickinson. “Mr. Mercer . . . disapproved of the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be uncontroulable.” 2 Max Farrand , The Framing of the Constitution of the United States 298 (1913) . “Mr. Dickinson was strongly impressed with the remark of Mr. Mercer as to the power of the Judges to set aside the law. He thought no such power ought to exist. He was at the same time at a loss what expedient to substitute.” Id. at 299 . Of course, the debates in the Convention were not available when the state ratifying conventions acted, so that the delegates could not have known these views about judicial review in order to have acted knowingly about them. Views, were, however, expressed in the ratifying conventions recognizing judicial review, some of them being uttered by Framers. 2 J. Elliot , Debates in the Several State Conventions on the Adoption of the Federal Constitution 131 (1836) (Samuel Adams, Massachusetts), 196–97 (Ellsworth, Connecticut), 348, 362 (Hamilton, New York): 445–46. 478 (Wilson, Pennsylvania); 3 J. Elliot , Debates in the Several State Conventions on the Adoption of the Federal Constitution 324–25, 539 , 541 (1836) (Henry, Virginia), 480 (Mason, Virginia), 532 (Madison, Virginia), 570 (Randolph, Virginia); 4 J. Elliot , Debates in the Several State Conventions on the Adoption of the Federal Constitution 71 (1836) (Steele, North Carolina), 156–57 (Davie, North Carolina). In the Virginia convention, Chief Justice John Marshall observed if Congress “were to make a law not warranted by any of the powers enumerated, it would be considered by the judge as an infringement of the Constitution which they are to guard . . . They would declare it void . . . . To what quarter will you look for protection from an infringement on the constitution, if you will not give the power to the judiciary? There is no other body that can afford such a protection.” 3 id. at 553–54 . Both Madison and Hamilton similarly asserted the power of judicial review in their campaign for ratification. The Federalist No. 39 (James Madison); id. Nos. 78, 81 (Alexander Hamilton). The persons supporting or at least indicating they thought judicial review existed did not constitute a majority of the Framers, but the absence of controverting statements, with the exception of the Mercer-Dickinson comments, indicates at least acquiescence if not agreements by the other Framers. Alexander Hamilton argued in favor of the doctrine in the Federalist Papers . 4 Footnote The Federalist No. 78 (Alexander Hamilton) ( “The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” ). In enacting the Judiciary Act of 1789, Congress explicitly provided for the exercise of the power, 5 Footnote In enacting the Judiciary Act of 1789, 1 Stat. 73 , Congress chose not to vest “federal question” jurisdiction in the federal courts but to leave to the state courts the enforcement of claims under the Constitution and federal laws. In Section 25 of the Judiciary Act ( 1 Stat. 85 ), Congress provided for review by the Supreme Court of final judgments in state courts (1) “where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity;” (2) “where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favor of their validity;” or (3) “where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed” thereunder. § 25, 1 Stat. 73 , 85–86 . and in other legislative debates questions of constitutionality and of judicial review were prominent. 6 Footnote See in particular the debate on the President’s removal powers, discussed in ArtII.S2.C2.3.15.1 Overview of Removal of Executive Branch Officers with statements excerpted in R. Berger , Congress v. The Supreme Court 144–150 (1969) . Debates on the Alien and Sedition Acts and on the power of Congress to repeal the Judiciary Act of 1801 similarly saw recognition of judicial review of acts of Congress. C. Warren , in id. at 107–12 4. Early Supreme Court Justices seem to have assumed the existence of judicial review. 7 Footnote Thus, the Justices on circuit refused to administer a pension act on the grounds of its unconstitutionally, see Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792) , and ArtIII.S1.4.4 Inherent Power to Issue Judgments. Chief Justice Jay and other Justices wrote that the imposition of circuit duty on Justices was unconstitutional, although they never mailed the letter in Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796) , a feigned suit, the constitutionality of a federal law was argued before the Justices and upheld on the merits, in Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796) , a state law was overturned, and dicta in several opinions asserted the principle. See Calder v. Bull, 3 U.S. (3 Dall.) 386, 399 (1798) (Justice Iredell), and several Justices on circuit, quoted in Julius Goebel, supra note 1, at 589–592.

The Supreme Court first formally embraced the doctrine of judicial review in the 1803 case Marbury v. Madison . 8 Footnote 5 U.S. (1 Cr.) 137 (1803) . Since Marbury , judicial review has become a core feature of American constitutional law. 9 Footnote See ArtIII.S1.3 Marbury v. Madison and Judicial Review. While the doctrine is well established, some legal commentators have criticized judicial review, and some who support it debate its doctrinal basis or how it should be applied. 10 Footnote See, e.g. , G. Gunther , Constitutional Law 1–38 (12th ed. 1991) ; For expositions on the legitimacy of judicial review, see L. Hand , The Bill of Rights (1958) ; H. Wechsler , Principles, Politics, and Fundamental Law: Selected Essays 1–15 (1961) ; A. Bickel , The Least Dangerous Branch: The Supreme Court at the Bar of Politics 1–33 (1962) ; R. Berger , Congress v. The Supreme Court (1969) . For an extensive historical attack on judicial review, see 2 W. Crosskey , Politics and the Constitution in the History of the United States chs. 27–29 (1953) , with which compare Hart, Book Review , 67 Harv. L. Rev. 1456 (1954) . A brief review of the ongoing debate on the subject, in a work that now is a classic attack on judicial review, is Westin, Introduction: Charles Beard and American Debate Over Judicial Review , 1790–1961 , in C. Beard , The Supreme Court and the Constitution 1–34 (1962 reissue of 1938 ed.) , and bibliography at 133–149. While much of the debate focuses on judicial review of acts of Congress, the similar review of state acts has occasioned much controversy as well.

Legal Dictionary

The Law Dictionary for Everyone

Judicial Review

In the United States, the courts have the ability to scrutinize statutes, administrative regulations, and judicial decisions to determine whether they violate provisions of existing laws, or whether they violate the individual State or United States Constitution . A court having judicial review power, such as the United States Supreme Court, may choose to quash or invalidate statutes, laws, and decisions that conflict with a higher authority. Judicial review is a part of the checks and balances system in which the judiciary branch of the government supervises the legislative and executive branches of the government. To explore this concept, consider the following judicial review definition.

Definition of Judicial Review

• Noun. The power of the U.S. Supreme Court to determine the constitutionality of laws, judicial decisions, or acts of a government official.

Origin:  Early 1800s  U.S. Supreme Court

What is Judicial Review

While the authors of the U.S. Constitution were unsure whether the federal courts should have the power to review and overturn executive and congressional acts, the Supreme Court itself established its power of judicial review in the early 1800s with the case of Marbury v. Madison (5 U.S. (1 Cranch) 137, 2L Ed. 60). The case arose out of the political wrangling that occurred in the weeks before President John Adams left office for Thomas Jefferson.

The new President and Congress overturned the many judiciary appointments Adams had made at the end of his term, and overturned the Congressional act that had increased the number of Presidential judicial appointments. For the first time in the history of the new republic , the Supreme Court ruled that an act of Congress was unconstitutional. By asserting that it is emphatically the judicial branch ’s province to state and clarify what the law actually is, the court assured its position and power over judicial review.

Topics Subject to Judicial Review

The judicial review process exists to help ensure no law enacted, or action taken, by the other branches of government , or by lower courts, contradicts the U.S. Constitution. In this, the U.S. Supreme Court is the “supreme law of the land.” Individual State Supreme Courts have the power of judicial review over state laws and actions, charged with making rulings consistent with their state constitutions. Topics that may be brought before the Supreme Court may include:

• Executive actions or orders made by the President
• Regulations issued by a government agency
• Legislative actions or laws made by Congress
• State and local laws
• Judicial error

Judicial Review Example Cases

Throughout the years, the Supreme Court has made many important decisions on issues of civil rights , rights of persons accused of crimes, censorship , freedom of religion, and other basic human rights.  Below are some notable examples.

Miranda v. Arizona (1966)

The history of modern day Miranda rights begins in 1963, when Ernesto Miranda was arrested for, and interrogated about, the rape of an 18-year-old woman in Phoenix, Arizona. During the lengthy interrogation, Miranda, who had never requested a lawyer , confessed and was later convicted of rape and sent to prison . Later, an attorney appealed the case, requesting judicial review by the Supreme Court, claiming that Ernesto Miranda’s rights had been violated, as he never knew he didn’t have to speak at all with the police.

The Supreme Court, in 1966, overturned Miranda’s conviction, and the court ruled that all suspects must be informed of their right to an attorney, as well as their right to say nothing, before questioning by law enforcement. The ruling declared that any statement, confession, or evidence obtained prior to informing the person of their rights would not be admissible in court. While Miranda was retried and ultimately convicted again, this landmark Supreme Court ruling resulted in the commonly heard “Miranda Rights” read to suspects by police everywhere in the country.

Weeks v. United States (1914)

Federal agents, suspecting Fremont Weeks was distributing illegal lottery chances through the U.S. mail system, entered and searched his home, taking some of his personal papers with them. The agents later returned to Weeks’ house to collect more evidence, taking with them letters and envelopes from his drawers. Although the agents had no search warrant , seized items were used to convict Weeks of operating an illegal gambling ring.

The matter was brought to judicial review before the U.S. Supreme Court to decide whether Weeks’ Fourth Amendment right to be secure from unreasonable search and seizure , as well as his Fifth Amendment right to not testify against himself, had been violated. The Court, in a unanimous decision, ruled that the agents had unlawfully searched for, seized, and kept Weeks’ letters. This landmark ruling led to the “ Exclusionary Rule ,” which prohibits the use of evidence obtained in an illegal search in trial .

Plessey v. Ferguson (1869)

Having been arrested and convicted for violating the law requiring “Blacks” to ride in separate train cars, Homer Plessey appealed to the Supreme Court, stating the so called “Jim Crow” laws violated his 14th Amendment right to receive “equal protection under the law.” During the judicial review, the state argued that Plessey and other Blacks were receiving equal treatment, but separately. The Court upheld Plessey’s conviction, and ruled that the 14th Amendment guarantees the right to “equal facilities,” not the “same facilities.” In this ruling, the Supreme Court created the principle of “ separate but equal .”

United States v. Nixon (“Watergate”) (1974)

During the 1972 election campaign between Republican President Richard Nixon and Democratic Senator George McGovern, the Democratic headquarters in the Watergate building was burglarized. Special federal prosecutor Archibald Cox was assigned to investigate the matter, but Nixon had him fired before he could complete the investigation. The new prosecutor obtained a subpoena ordering Nixon to release certain documents and tape recordings that almost certainly contained evidence against the President.

Nixon, asserting an “absolute executive privilege” regarding any communications between high government officials and those who assist and advise them, produced heavily edited transcripts of 43 taped conversations, asking in the same instant that the subpoena be quashed and the transcripts disregarded. The Supreme Court first ruled that the prosecutor had submitted sufficient evidence to obtain the subpoena, then specifically addressed the issue of executive privilege. Nixon’s declaration of an “absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances,” was flatly rejected. In the midst of this “Watergate scandal,” Nixon resigned from office just 15 days later, on August 9, 1974.

The Authority Behind Judicial Review

Interestingly, Article III of the U.S. Constitution does not specifically give the judicial branch the authority of judicial review. It states specifically:

“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.”

This language clearly does not state whether the Supreme Court has the power to reverse acts of Congress. The power of judicial review has been garnered by assumption of that power:

• Power From the People . Alexander Hamilton, rather than attempting to prove that the Supreme Court had the power of judicial review, simply assumed it did. He then focused his efforts on persuading the people that the power of judicial review was a positive thing for the people of the land.
• Constitution Binding on Congress . Hamilton referred to the section that states “No legislative act, therefore, contrary to the Constitution, can be valid,” and pointed out that judicial review would be needed to oversee acts of Congress that may violate the Constitution.
• The Supreme Court’s Charge to Interpret the Law . Hamilton observed that the Constitution must be seen as a fundamental law, specifically stated to be the supreme law of the land. As the courts have the distinct responsibility of interpreting the law, the power of judicial review belongs with the Supreme Court.

What Cases are Eligible for Judicial Review

Although one party or another is going to be unhappy with a judgment or verdict in most court cases, not every case is eligible for appeal . In fact, there must be some legal grounds for an appeal, primarily a reversible error in the trial procedures, or the violation of Constitutional rights . Examples of reversible error include:

• Jurisdiction . The court wrongly assumes jurisdiction in a case over which another court has exclusive jurisdiction.
• Admission or Exclusion of Evidence . The court incorrectly applies rules or laws to either admit or deny the admission of certain vital evidence in the case. If such evidence proves to be a key element in the outcome of the trial, the judgment may be reversed on appeal.
• Jury Instructions . If, in giving the jury instructions on how to apply the law to a specific case, the judge has applied the wrong law, or an inaccurate interpretation of the correct law, and that error is found to have been prejudicial to the outcome of the case, the verdict may be overturned on judicial review.

Related Legal Terms and Issues

• Executive Privilege – The principle that the President of the United States has the right to withhold information from Congress, the courts, and the public, if it jeopardizes national security, or because disclosure of such information would be detrimental to the best interests of the Executive Branch .
• Jim Crow Laws – The legal practice of racial segregation in many states from the 1880s through the 1960s. Named after a popular black character in minstrel shows, the Jim Crow laws imposed punishments for such things as keeping company with members of another race, interracial marriage, and failure of business owners to keep white and black patrons separated.
• Judicial Decision – A decision made by a judge regarding the matter or case at hand.
• Overturn – To change a decision or judgment so that it becomes the opposite of what it was originally.
• Search Warrant – A court order that authorizes law enforcement officers or agents to search a person or a place for the purpose of obtaining evidence or contraband for use in criminal prosecution.

• Administrative and public law

Judicial review reform

The UK has a long and proud history of honouring the rule of law. This means that everyone, including the government, must comply with the law.

Judicial review is a vital part of the justice system in England and Wales. It’s a way for people to:

• assert their fundamental rights
• test the lawfulness of decisions made by public bodies
• seek a remedy when things go wrong

Judicial review is an important part of our constitutional balance of powers between the executive, parliament, and judiciary.

It's a way of upholding the sovereignty of parliament and maintaining trust in government decision-making.

Hear from Joe and Lucy about their experiences of using judicial review

Judicial Review and Courts Act

The government introduced the Judicial Review and Courts Bill in July 2021. It received royal assent and became law on 28 April 2022.

The Judicial Review and Courts Act makes changes to judicial review by:

• giving the courts powers to award suspended and prospective-only quashing orders
• reversing the judgment in R (Cart) v The Upper Tribunal so that decisions of the Upper Tribunal are no longer eligible for judicial review

It also makes a number of procedural changes across the court system.

Throughout the legislative passage of the Judicial Review and Courts Act, we engaged with parliamentarians to ensure the voices of solicitors were heard.

This resulted in a proposed statutory presumption being removed from the final law. The presumption would have required judges to award the new suspended and prospective quashing orders widely.

The removal of the presumption was a major win and the result of almost two years of campaigning and engagement. We believe it improves the act by maintaining judicial discretion as to which remedies are awarded. It also reduces the potential for negative impacts arising from the new remedies.

The act does, however, still makes significant changes to:

• the remedies that are available following a successful case, and
• what can be challenged in a judicial review case

Suspended quashing orders

The new power for courts to suspend a quashing order allows the order to take effect at a later date.

We believe this new remedy, if used in exceptional cases, will enhance flexibility and allow the interests of claimants and defendants to be balanced when awarding remedies in judicial review. 

Prospective-only quashing orders

A prospective-only quashing order stops a decision or action of a public body from applying in the future, meaning they only apply to past events prior to the court judgment.

As a result, any previous uses of the decisions, despite being found to be unlawful, would be upheld.

We still have some concerns that this could prevent a successful claimant, and anyone else affected by the unlawful decision, from receiving a full remedy.

However, by leaving their use up to the discretion of judges, we hope the orders will only be used where strictly necessary and in a way that does not unfairly disadvantage the claimant.

Removing decisions of the Upper Tribunal from judicial review

A decision of the Upper Tribunal can no longer be judicially reviewed.

We still have some concerns that important points of law or procedural fairness, which would otherwise have been considered by the High Court, could be left unaddressed.

What we’re doing

April 2022  – we engaged with the government, securing an agreement to remove the statutory presumption from the bill , and the bill received royal assent

April 2022  – we raised our concerns with the UN in a submission to the universal periodic review of the UK (PDF 270 KB)

February 2022 – we put together a parliamentary briefing ahead of the second reading in the House of Lords

January 2022 – we heard from members of the public about the power of judicial review and their experiences with the process

October 2021 – we put together a parliamentary briefing ahead of the second reading in the House of Commons

April 2021  – we responded to the Ministry of Justice judicial review reforms consultation 

October 2020 – we responded to the Independent Review of Administrative Law call for evidence  on a range of aspects of judicial review

September 2020 – we held a roundtable of expert solicitors to discuss the Independent Review of Administrative Law’s terms of reference and develop our list of fundamental principles

Get involved

We’ll be monitoring the effects of the Judicial Review and Courts Act to ensure any negative consequences are brought to the attention of law makers.

If you've represented a client where any of the new measures have caused concern, email our policy advisor Hazel Blake .

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Article Contents

1. the problem of legitimacy and the institutional dialogue theory, 2. two conceptions of dialogue, 3. dialogue as deliberation and the doctrine of judicial responsibility, 4. dialogue as deliberation and the legitimacy of judicial review, 5. dialogue as conversation and the legitimacy of judicial review, 6. conclusion.

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The legitimacy of judicial review: The limits of dialogue between courts and legislatures

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Luc B. Tremblay, The legitimacy of judicial review: The limits of dialogue between courts and legislatures, International Journal of Constitutional Law , Volume 3, Issue 4, October 2005, Pages 617–648, https://doi.org/10.1093/icon/moi042

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According to the theory of “institutional dialogue,” courts and legislatures participate in a dialogue aimed at achieving the proper balance between constitutional principles and public policies and the existence of this dialogue constitutes a good reason for not conceiving of judicial review as democratically illegitimate. This essay sets out to demonstrate that there are important limits to the capacity of insitutional dialogue to legitimize the institution of judicial review. To that end, it situates the theory of institutional dialogue within the debate over the legitimacy of judicial review of legislation within democracy and introduces a distinction between two conceptions of dialogue—dialogue as deliberation and dialogue as conversation—and examines the limits of each theory. The author does not contend that there can be no dialogue between courts and legislatures but, rather, that the kind of dialogue that would be needed to confer legitimacy on the institution and practice of judicial review does not—and cannot—exist. Consequently, the normative character of institutional dialogue theory, as conceived thus far, is ultimately rhetorical.

The theory of institutional dialogue, as I shall understand it, has been put forward by Peter Hogg and Allison Thornton in Peter W. Hogg & Allison A. Bushell, The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights Isn't Such A Bad Thing After All) , 35 O sgoode H all L.J. 75 (1997). See infra , section I.

I briefly recall the nature of this objection below, in section I.

Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, 1982, c. 11 (U.K.) [hereinafter “the Charter”].

Section one provides: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The justificatory tests have been expounded by the Supreme Court in R. v. Oakes , [1986] 1 S.C.R. 103.

Section 33 provides: “(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.…(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration. (4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1). (5) Subsection (3) applies in respect of a re-enactment made under subsection (4).”

See, e.g. , Mark Tushnet, Judicial Activism or Restraint in a Section 33 World , 53 U. Toronto L.J. 89 (2003).

See, e.g. , Jü rgen H abermas , M oral C onsciousness and C ommunicative A ction (Christian Lenhart & Shierry Weber Nicholson trans., MIT Press 1991); Jü rgen H abermas , B etween F acts and N orms (William Rehg trans., MIT Press 1996); Bruce Ackerman, Why Dialogue? , 86 J. P hil . 5 (1989). See generally , D eliberative D emocracy : E ssays O n R eason and P olitics (James Bohman & William Rehg eds., MIT Press 1997).

See, e.g. , G rundgesetz (German Basic Law), adopted in 1949; C onst . S. A fr ., adopted in 1993; and the Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, E.T.S. 5.

See, e.g. , the American doctrine of due process of law and the tests articulated by the American Supreme Court as required by various levels of scrutiny.

My colleague Jean Leclair also concludes, for other reasons, that the theory is merely rhetorical. See Jean Leclair, Reflexions critiques au sujet de la métaphore du dialogue en droit constitutionnel canadien [ Critical reflections on the metaphor of dialogue in Canadian constitutional law ], 2003 Revue du Barreau (Numéro special) 379, 402–412.

See, R obert B ork , T he T empting of A merica (MacMillan 1990) (source-based/originalism); J ohn H art E ly , D emocracy and D istrust (Harvard Univ. Press 1980) (process-based/pluralist-utilitarian democracy); R onald D workin , F reedom ' s L aw (Harvard Univ. Press 1996) (substance-based/egalitarian moral theory).

It ought not be forgotten that the historic decision to entrench the Charter in our Constitution was taken not by the courts but by the elected representatives of the people of Canada. It was those representatives who extended the scope of constitutional adjudication and entrusted the courts with this new and onerous responsibility. Adjudication under the Charter must be approached free of any lingering doubts as to its legitimacy. 12

Motor Vehicle Act , [1985] 2 S.C.R. 486, 497.

Marbury v. Madison , 5 U.S. (1 Cranch) 137 (1803); Chief Justice Marshall said that “the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness” and that “all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.” Id. at 176–177.

The phrase is borrowed from Bruce Ackerman, The Storrs Lectures: Discovering the Constitution , 93 Y ale L.J. 1013 (1984). Indeed, this argument might not hold when the legislation has been enacted prior to the enactment of the constitution.

Id .; see also B ruce A ckerman , W e T he P eople : F oundations (Belknap Press of Harvard Univ. Press 1991).

See, e.g. , A lexander B ickel , T he L east D angerous B ranch 24 (Yale Univ. Press 1962).

I have put forward certain criticisms in Luc B. Tremblay, General Legitimacy of Judicial Review and the Fundamental Basis of Constitutional Law , 23 O xford J. L eg . S tud . 525, 534–538 (2003).

I have explored this theme in various texts. See, e.g. , Luc B. Tremblay, L'interprétation téléologique des droits constitutionnels [ Teleological interpretation in constitutional law ], 29 R ev . J urid . T h é mis 459 (1995); Luc B. Tremblay, Marbury v. Madison and Canadian Constitutionalism: Rhetoric and Practice , 37 R ev . J urid . T h é mis 375 (2003). More generally, see Luc B. Tremblay, Le droit a-t-il un sens? Réflexions sur le scepticisme juridique [ Does the law have direction? Reflections on legal skepticism ], 42 R evue I nterdisciplinaire D'é tudes J uridiques 13 (1999).

Finally, even if the constitution were democratically superior to ordinary legislation, it would not necessarily follow that judges should have the power to review legislation. Insofar as political legitimacy is a matter of democratic pedigree, it seems to follow that the legislatures, not the courts, should be morally entitled to make the final decisions with respect to constitutional interpretation and application—for the very reason that they best represent the people. These strategies seem to require legislative supremacy even as they actually seek to legitimize judicial supremacy.

For a very good overview of different theories of institutional dialogue for the purposes of constitutional theory, see K. Roach, Constitutional and Common Law Dialogues Between the Supreme Court and Canadian Legislatures , 80 C an . B. R ev . 481, 490–501 (2001). See also K ent R oach , T he S upreme C ourt on T rial : J udicial A ctivism or D emocratic D ialogue (Irwin Law 2001).

See Hogg & Bushell, supra note 1. This version has been refined or endorsed by various scholars. See, e.g. , Roach, supra note 19; A.Wayne MacKay, The Legislature, The Executive and the Courts: The Delicate Balance of Power or Who is Running the Country Anyway? , 24 D alhousie L.J. 37 (2001).

Hogg and Bushell, supra note 1, at 79.

Section 33: “(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.… (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration. (4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1). (5) Subsection (3) applies in respect of a re-enactment made under subsection (4).”

Section one provides: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

For example, section 7 provides: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Section 8 states: “Everyone has the right to be secure against unreasonable search or seizure.”

Section 15 provides: “(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

According to Hogg and Thornton, the empirical evidence supporting institutional dialogue refutes “the critique of the Charter based on democratic legitimacy.” 26 Indeed, where a judicial decision striking down a law on Charter grounds can be reversed, modified, or avoided by a new law, “any concern about the legitimacy of judicial review is greatly diminished.” 27 The objection founded on the continuous character of democracy is refuted. While the courts may nullify legislation on the basis of past citizens' views, their decisions almost always leave room for contemporary legislative responses. Similarly, the objection from indeterminacy loses its point. Even if the judges were “activist” and enforced values either not consistent with an “original” understanding of the text or not objectively commanded by the text, the legislatures would normally be able to devise a response “which accomplishes the social or economic objectives that the judicial decision has impeded.” 28 Finally, the objection from judicial supremacy is much weaker than generally thought. While the courts may nullify legislation on the basis of their own formal or substantive understanding of constitutional principles and purposes, the legislatures may almost always reverse, modify, or avoid their decisions. Thus, as already noted, the courts would not have the last word concerning the proper balance between individual interests and social policies, and the constitution would not necessarily be whatever the courts say it is.

To be sure, the Court may have forced a topic onto the legislative agenda that the legislative body would have preferred not to have to deal with. And, of course, the precise terms of any new law would have been powerfully influenced by the Court's decision. The legislative body would have been forced to give greater weight to the Charter values identified by the Court in devising the means of carrying out the objectives, or the legislative body might have been forced to modify its objectives to some extent to accommodate the Court's concerns. These are constraints on the democratic process, no doubt, but the final decision is the democratic one. 32

Hogg and Bushell, supra note 1, at 105.

Id . at 81.

Id . at 105.

See Roach, supra note 19, at 530–531.

Id . at 531.

Id. at 532.

As I view the matter, the Charter has given rise to a more dynamic interaction among the branches of governance. This interaction has been aptly described as a “dialogue” by some. 39 In reviewing legislative enactments and executive decisions to ensure constitutional validity, the courts speak to the legislative and executive branches. As has been pointed out, most of the legislation held not to pass constitutional muster has been followed by new legislation designed to accomplish similar objectives (see Hogg and Bushell, supra , at p. 82). By doing this, the legislature responds to the courts; hence the dialogue among the branches. 38 [1998] 1 S.C.R. 493, paras. 138–139. 39 See, e.g. , Hogg & Bushnell, supra note 1. To my mind, a great value of judicial review and this dialogue among the branches is that each of the branches is made somewhat accountable to the other. The work of the legislature is reviewed by the courts and the work of the court in its decisions can be reacted to by the legislature in the passing of new legislation (or even overarching laws under s. 33 of the Charter ). This dialogue between and accountability of each of the branches have the effect of enhancing the democratic process, not denying it. 40

[1998] 1 S.C.R. 493, paras. 138–139.

As a result of the consultation process, Parliament decided to supplement the “likely relevant” standard for production to the judge proposed in O'Connor with the further requirement that production be “necessary in the interests of justice.” The result was s. 278.5. This process is a notable example of the dialogue between the judicial and legislative branches discussed above. This Court acted in O'Connor , and the legislature responded with Bill C-46. As already mentioned, the mere fact that Bill C-46 does not mirror O'Connor does not render it unconstitutional. 46

[1999] 3 S.C.R. 668.

Id. at para. 57.

Bill C-46, S.C. 1997, c. 30. It came into force on May 12, 1997 and amended the Criminal Code, R.S.C., 1985, c. C-46.

[1995] 4 S.C.R. 411.

Mills , supra note 40, at para. 20.

Id. at para. 125.

See, e.g. , Justice Bastarache in M. v. H. , [1999] 2 S.C.R. 3, paras. 286, 328; Justice L'Heureux-Dubé in Corbiere v. Canada (Minister of Indian and Northern Affairs) , [1999] 2 S.C.R. 203, para. 116; Justice Gonthier in Sauvé v. Canada (Chief Electoral Officer) , [2002] 3 S.C.R. 519, paras. 104–108; Justice Major in Harper v. Canada (Attorney General) , [2004] 1 S.C.R. 827, para. 37.

Christopher P. Manfredi & J. B. Kelly, Six Degrees of Dialogue: A Response to Hogg and Bushell , 37 O sgoode H all L.J. 513 (1999). See also C hristopher P. M anfredi , J udicial P ower and The C harter 176–181 (Oxford Univ. Press 2d ed. 2001).

Manfredi, supra note 47, at 520–521. For similar criticisms, see F. L. M orton and R ainer K nopff , T he C harter R evolution & T he C ourt P arty 162–166 (Broadview Press 2000). In their view, the dialogue “is usually a monologue, with judges doing most of the talking and legislatures most of the listening.” Id. at 166. See also Tushnet, supra note 6.

Manfredi, supra note 47, at 515.

Id . at 522.

Id. at 524. See also M anfredi , supra note 47, at 178–181. This form of “genuine dialogue” corresponds to what other authors have called “coordinate construction.” See Roach, supra note 19, at 529. See also Dennis Baker & Rainer Knopff, Minority Retort: A Parliamentary Power to Resolve Judicial Disagreement in Close Cases , 21 W indsor Y.B. A ccess J ust . 347 (2002)(they clearly argue in favour of “coordinate interpretation”). See also David Schneiderman, Kent Roach, the Supreme Court on Trial: Judicial Activism or Democratic Dialogue , 21 W indsor Y.B. A ccess J ust . 633 (2002); J anet L. H iebert , C harter C onflicts : W hat is P arliament's R ole ? 202 (McGill-Queen's Univ. Press)(proposing to conceive the shared responsibility with respect to constitutional interpretation in “relational” terms, instead of in terms of dialogue); Tushnet, supra note 6.

See, e.g., Roach, supra note 19; Baker & Knopff, supra note 51; Christopher P. Manfredi & James B. Kelly, Dialogue, Deference and Restraint: Judicial Independence and Trial Procedures , 64 S ask . L. R ev . 323 (2001).

The precedent established a common law procedure on the basis of Charter's values . See, supra notes 37–42.

Jamie Cameron, Dialogue and Hierarchy in Charter Interpretation: A Comment on R. v. Mills , (2000) 38 ALTA. L. REV. 1051 (2001).

Id. at 1067.

Id . at 1063.

Id . at 1060.

Id . at 1068. According to Cameron, “either the Constitution is supreme or it is not. If it is supreme, Parliament could only overrule O'Connor, legislatively, by invoking s. 33. On that view, the Court's choices in Mills were to overrule O'Connor or to strike down parts of the legislation. Alternatively, if constitutional interpretation is not supreme, then s. 33 serves little purpose because the Court's interpretations of the Charter are collapsed into the political process.” Id . at 1062–1063. For similar criticisms, see Roland Penner, Charter Conflicts: What is Parliament's Role? , 28 Q ueen 's L.J. 731 (2003); Leclair, supra note 10, at 402–412; David M. Paciocco, Competing Constitutional Rights in the Age of Deference: A Bad Time to be Accused , 14 S up . C t . L. R ev . (2d) 111 (2001); Don Stuart, Mills: Dialogue with Parliament and Equality by Assertion at What Cost? , 28 C rim . R ep . (5th) 275 (1999).

Leclair, supra note 10.

Id . at 395–402.

The phrase “judicial minimalism” can be associated with Cass Sunstein's works. See C ass S unstein , O ne C ase at a T ime : J udicial M inimalism on T he S upreme C ourt (Harvard Univ. Press 1999). Judicial Minimalism is similar in principle to Alexander Bickel's “passive virtues”. See Bickel, supra note 16.

Leclair, supra note 10, at 412–420. Leclair's criticisms and reflections use the application of the “reading in” doctrine of Vriend as his main target.

See, for example, Peter W. Hogg & Allison A. Thornton, Reply to “Six Degrees of Dialogue” , 37 O sgoode H all L.J. 529 (1999); Manfredi & Kelly, supra note 52. For further refinements, see, for example, Kent Roach, American Constitutional Theory for Canadians (And the Rest of the World) , 52 U. T oronto L.J. 503 (2002); Kent Roach, Remedial Consensus and Dialogue Under the Charter: General Declarations and Delayed Declarations of Invalidity , 35 U. B. C. L. R ev . 211 (2002).

That a dialogue between the legislature and the court could legitimize the institution of judicial review in a democracy is a powerful and appealing notion. Yet, the theory of institutional dialogue is problematical. In order to see why, it is necessary to clarify what is meant by “dialogue” as the idea pertains to the legitimization of judicial review. In a general sense, a dialogue assumes that two or more persons, recognized as equal partners, exchange words, ideas, opinions, feelings, emotions, intentions, desires, judgments, and experiences together within a shared space of intersubjective meanings. But there are various kinds of dialogue. In what follows, I will introduce two distinct conceptions of dialogue.

In the first instance, the word dialogue can be used to describe a conversation. In this sense, a dialogue involves at least two persons, recognized as equals, exchanging words, ideas, opinions, feelings, and so forth together in rather informal and spontaneous ways. In a conversation, the participants have no specific practical purpose other than the general goal of exploring or creating a common world and body of meanings, learning something new about others, or discovering new perspectives. Discussions with friends over a meal are generally of this kind. We exchange points of view on a plurality of subjects freely, with no specific goal, no timetable, no strong debate and argumentation, and, sometimes, with humorous comments. A dialogue as conversation can be more or less successful, depending on the degree of mutual understanding. In order to be successful, the participants must encounter each other in a shared world through a common language. This presupposes cooperation. Each participant must have an interest in, and a serious commitment to, what the others have to say. A conversation may fail, therefore, when the participants talk at cross-purposes or when they do not truly open themselves to the others or to what they have to say. I shall call this form of dialogue a “dialogue as conversation.”

Since a dialogue as “informal” conversation has no specific practical purpose, it does not aim at taking a collective decision; reaching agreement; solving problems or conflicts; persuading others that a given opinion or thesis is true, the most justified, or the best; or determining together which particular view should govern actions or decisions. For this reason, a dialogue as conversation has no practical outcome to legitimize. Of course, it may possess some normative value; however, it possesses no legitimating value. Nevertheless, however informally it proceeds, a successful conversation may have an impact, however minimal, on the life of the participants. If I talked to someone who told me that she loves the tango or is keen to rent a villa in the city of Florence, our conversation may have provoked in my mind new interests, such as taking tango lessons or going to Florence next summer. But the purpose of our conversation was not the organization of my spare time or my next holiday. It would not be a failure if no such consequences followed from our dialogue, and if I stuck to my original plan to take Spanish lessons or to go to Istanbul.

See the various essays in Deliberative Democracy, supra note 7.

No dialogue as deliberation could operate or sustain itself unless it satisfies certain conditions. First, each participant must recognize the other as an equal partner. Each participant must be equally entitled to put forward theses, to make proposals, to defend particular options, and to take part in the final decision. No one should be excluded from the dialogue, no one should impose by fiat where the dialogue should lead, and no hierarchy must confer in advance on one or more of the participants the authority to settle the disagreements. Second, a dialogue as deliberation must be a process of rational persuasion, not a form of coercion. Accordingly, the participants must have good reason to believe that the positions they defend are true, justified, or best, and they must try to convince the others of the force of their position. Yet, a dialogue as deliberation is not a debate one must absolutely win or in which one's views must absolutely prevail. Considering the specific common practical goals, each participant must be willing to expose their views to the critical analysis of the others and must be ready to change them if others put forth better arguments. Otherwise, the dialogue would not be a deliberation: the participants would stick to their original views and the dialogue would be a form of conversation. Third, a dialogue as deliberation must aim at producing some practical judgment, action, or decision that can be the object of reasoned agreements among the participants. Thus, the participants must justify their positions according to rules of evidence and argument that are, in principle, acceptable to all others. They must take into account each other's perspective and try to incorporate them into their own views. Of course, in particular cases, the pressure of time or the nature of the reasons may make it impossible for the participants to reach rational agreement. In these cases, they must agree to disagree. Nevertheless, the process of dialogue as deliberation must be constrained by this regulative ideal: any outcome must be the result of free and reasoned agreement (or disagreement) among the participants recognized as equal partners. Otherwise, the deliberation would not hold and the dialogue would be a form of conversation.

This conception of dialogue as deliberation has an obvious connection with much contemporary theories of deliberative democracy. My own contribution to this question is found in Luc B. Tremblay, Deliberative Democracy and Liberal Rights , 14 R atio J uris 424 (2001). See generally , Deliberative Democracy: Essays on Reason and Politics, supra note 7.

The theory of institutional dialogue claims that judicial review is democratically legitimate because it constitutes “part” of a dialogue between the courts and the legislatures. But what kind of dialogue is presupposed by this theory? That is, which dialogue confers democratic legitimacy on judicial review—dialogue as conversation or dialogue as deliberation? Considering what has just been said, the answer is likely to be the latter, for only this form of dialogue seems to possess legitimating force. Dialogue as deliberation seeks to make collective decisions, to settle practical conflicts, and to reach agreements. It seems to be specifically designed to confer legitimacy on some practical outcome. Consequently, one might reasonably argue that this form of dialogue, qua dialogue, could legitimize judicial review and courts nullifying legislation, provided that such dialogue satisfies the conditions that confer legitimacy on the results: equality, rationality, and reasoned agreement.

Of course, within this process, each institution has a distinct role to play; the courts may emphasize the importance of maintaining fundamental, substantive, and procedural values, while the legislatures may emphasize the importance of promoting certain social and economic goals. But the courts must try to convince the legislatures that their conceptions of the right balance between fundamental values and collective good are stronger, from a constitutional point of view, than the legislatures' conceptions; in their responses, the legislatures must do the same with respect to their own conceptions. Each institution must put forward the best arguments in favor of their conceptions of constitutional justice, yet each must also be committed to changing their views if the other institution's positions appear stronger.

Hogg & Thornton, supra note 65, at 536. Manfredi and Kelly have responded that “legislative acquiescence may be indicative of a dialogue that has produced agreement. This argument is only persuasive, however, if agreement is bi-directional. In other words, there should be examples of cases where the Court acquiesces in a legislative decision. This is why the Court's judgment in Mills [R. v. Mills, [1999] 3 S.C.R. 668] is so important in constructing and defending the dialogue metaphor, since it appears to present a paradigmatic case of dialogue: a judicial decision, followed by legislation modifying that decision and judicial agreement with the new legislation. Yet close analysis of Mills raises questions about this characterization.” Manfredi & Kelly, supra note 52, at para. 16.

The first limitation to the theory of deliberative institutional dialogue derives from what I will call the doctrine of “judicial responsibility.” According to this doctrine, judges should be totally committed to the decisions they reach in particular cases. They must regard themselves as the authors of their decisions and should be capable of justifying them on the basis of reasons they sincerely believe are good and sufficient according to their best understanding of the law. In this sense, judicial decisions according to law should be truly attributable to the judges who sign them. In a word, judges must be “responsible.” The doctrine of judicial responsibility goes to the heart of the rule of law and constitutes a central part of the standards, norms, and virtues that constitute judicial ethics.

It follows from the foregoing that judges must not subordinate their own convictions and practical judgments to the will or judgment of others. They must not allow their family or social relationships, for example, to influence their judgments. They must not defer to some position or thesis they cannot rationally share or accept. A judge who would issue a ruling he or she did not believe in or conceive of as the best, indeed, as the right legal decision under the circumstances would not be behaving responsibly. In fact, they would be making an illegitimate use of judicial power to interpret and apply the laws that govern society. Responsible judges, therefore, must make up their own minds with respect to the best or the right answer to the specific questions of law and must take full responsibility for their judgments and rulings according to law.

The doctrine of judicial responsibility specifically applies to the process of constitutional adjudication. Judges who are asked to review the constitutionality of legislative acts must follow their own constitutional convictions. They must assess the validity of a challenged law in light of their own best understanding of constitutional norms and values. This means they cannot subordinate their own constitutional views to the will or judgment of others or formally defer to the views of others. And this proposition would apply equally to the judges' relationships to legislatures. Judges who would simply defer to the legislatures, with respect to constitutional interpretation and validity, would not be responsible. As a consequence, the doctrine of judicial responsibility must be considered inconsistent with the idea of judicial deference to the legislatures with regard to the constitutionality of challenged laws. Moreover, judges do not have to justify their decisions on the basis of reasons that legislatures would necessarily accept. The judicial decisions must be in accordance with the judges' deepest convictions about what the law requires in particular cases.

Of course, the government is generally entitled to explain to the court the reasons that support the challenged laws and to defend its view about the proper constitutional balance between principles and policy. But there is nothing special about this. The doctrine of judicial responsibility includes a certain number of duties, such as the adjudicative duty to accord to every legally interested person in a proceeding the full right to be heard prior to a decision. However, the mere fact that judges, in constitutional cases, listen to the government and attend to its arguments does not necessarily mean that a deliberative dialogue is going on between the courts and the legislatures. The justification of the government's right to be heard does not correspond to an equal right to participate in a process aiming at a reasoned agreement among equals. The justification of the government's right to be heard is the right to state one's case, to present one's version of the facts, and to submit one's best conception of constitutional interpretation to a third party—the courts—which have the ultimate responsibility of making a just constitutional decision. It is significant that this aspect of the judicial process is called a “hearing,” not a dialogue. Moreover, insofar as the doctrine of judicial responsibility requires the judges to be convinced that their decisions are legally the best, indeed, the only correct ones, it is highly desirable that prior to a decision, the judges hear and seriously try to understand what the legislatures thought about the validity of the laws. This is a case where the quantity of information, presented as competing views and arguments, increases the probability of reaching the correct decision. Of course, for this very reason, judges might extend the right to be heard to all those who have something relevant to say about constitutional interpretation: philosophers, sociologists, political scientists, journalists, judges in other jurisdictions, legal scholars, and the like. But that is another subject.

The doctrine of judicial responsibility requires that judges have the last word with respect to the proper meaning, force, and scope of the constitutional values and principles they apply in particular cases. This last word holds not only in cases where judges nullify a piece of legislation, that is, where the courts are thought of as initiating a dialogue, but also in all subsequent cases where new laws, enacted to correct what the legislatures regard as mistaken judicial nullification, are challenged. In other words, the judges cannot recognize as constitutionally valid a particular law enacted to reverse, modify, or avoid a judicial decision nullifying a former legislative act unless they are convinced, on balance, that the corrective legislation is consistent with their best understanding of the proper meaning of constitutional norms and values.

This obvious statement is, indeed, admitted by all institutional dialogue theorists.

Kent Roach seems to acknowledge that section 33 is not a means by virtue of which the legislatures can contribute to the final determination of the proper balance between constitutional values and social policies, but a means that preserves the court's constitutional interpretation and decision. In a criticism of Mills , he explicitly argues that: “To the extent that one of the Court's concerns in Mills was to make room for dialogue between it and the Parliament, the section 33 override also would have accomplished this task by preserving the Court's decision in O'Connor and ensuring further public discussion of this difficult and evolving subject in five years time when the override would expire.” Roach, supra note 19, at 528–529. This is paradoxical because one justification of the theory of institutional dialogue is the fact that the legislatures would participate in the process of determining the proper balance between constitutional values and social policies. For example, elsewhere, Roach argues that section 33 “allows the legislatures to reverse a Court decision and is consistent with strong and radical dialogic theories which suggest that the legislature can interpret the Constitution itself or hold accountable a Court that issues a judgment that is unacceptable to the majority.” Id . at 531.

The doctrine of legislative responsibility has been debated in various terms within American constitutional history. See, e.g. , Bickel, supra note 16, at 259–272.

This form of dialogue would constitute a version of what some have called “coordinate dialogue.” See supra note 51.

This plausible outcome might constitute one compelling reason to favor judicial supremacy. See the arguments put forward by the American constitutional scholars Larry Alexander and Frederick Schauer in On extrajudicial Constitutional Interpretation , 110 Harv. L. Rev. 1359 (1997). See also , Larry Alexander & Frederick Schauer, Defending Judicial Supremacy: A Reply , 17 C onst . C omment . 455 (2000). See also Cameron's argument, supra note 54.

Roach, supra note 19, at 489.

I have examined these conditions in greater details in Luc B. Tremblay, General Legitimacy of Judicial Review and the Fundamental Basis of Constitutional Law , 23 O xford J. L egal S tud . 525 (2003).

It is generally admitted within our political and legal tradition that judicial power ought to act, as far as possible, in a legitimate manner. This view expresses and corresponds to an abstract and general principle of political morality, which, in essence, asserts that “all political authorities in a state ought to act, as far as possible, in a legitimate manner.” This abstract and very general principle is rarely made explicit within normative political and constitutional theory. But it has underpinned most systematic thinking on moral and political legitimacy within liberal and democratic thought. The recurrent debate over the legitimacy of judicial review logically presupposes the more abstract principle's validity; the interest in the theory of institutional dialogue would be futile, indeed unintelligible, without the existence of such moral principle.

See L uc B. T remblay , T he R ule of L aw , J ustice , and I nterpretation (McGill-Queen's University Press 1997), at ch. II.

In order to fulfill their basic moral duty to act, as far as possible, in a legitimate way, judges must satisfy both conditions. Within certain modern conceptual systems, it has been argued that the rule-of-law condition is sufficient to establish the moral legitimacy of the judicial power. This view corresponds to what has often been referred to as “legalism.” But legalism does not offer an adequate theory of judicial moral legitimacy. Legalism is a formal condition. It postulates that moral legitimacy is a matter of acting in accordance with a set of valid legal rules, independently of their intrinsic moral worth or consequences. It reduces moral legitimacy to legality. Legalism would imply that a judicial decision enforcing a totally arbitrary rule (the killing of all red-haired Canadians, for example) enacted in accordance with constitutional form and process by a dictator who has taken power in a nondemocratic way would be morally legitimate. But this is incoherent from the point of view of political morality. Moral legitimacy requires consistency with at least one standard of political morality that can provide the conditions the state's system of laws and institutions must satisfy in order to be morally acceptable. Since no moral standard could legitimize a dictator's decree to put one class of citizens to death for no reason at all, such a decree cannot be conceived as morally permissible. Yet, legalism claims that judicial decisions enforcing such a decree would be morally legitimate. Since the decree cannot confer moral legitimacy on any decision based on it (the decree has no moral force), legalism must presuppose the existence of at least one independent moral principle that could morally require the courts to enforce decrees that are not morally permissible. But there is no such principle. If there were such a principle, political morality would be incoherent. On the one hand, totally illegitimate governments could legitimize their own arbitrary decrees merely by having them enforced by the courts; on the other hand, the judicial authority would be morally entitled to enforce what is not entitled morally to enforcement.

Legalism is not a sufficient condition to establish the legitimacy of judicial action. Judicial power cannot execute its basic abstract moral duty unless it satisfies the rule-of-law condition and the legitimacy-of-law condition. Accordingly, if the norms (that is, the rules, principles, standards) that govern courts' composition processes, and decisions were not, in a certain sense, legal or, if legal, were not, in a certain sense, morally legitimate, then judicial authority would not be legitimate. More specifically, if the reasons for judicial decision in a certain sense, legal, or if they were legal reasons but not, in a certain sense, morally legitimate, then the decision based upon them would not be legitimate either. The legitimacy of the judicial power, therefore, requires that judges justify their own actions and decisions on the basis of reasons that are, at least in a certain sense, legal, provided that these legal reasons are also morally legitimate.

This reasoning explains and justifies the fundamental moral and conceptual basis of judicial review. In sum, the process of judicial review constitutes the means by which judges are able to execute their basic moral duty to act, as far as possible, in a legitimate way. On the one hand, judicial review is the process whereby judges may verify whether the particular norms they are asked to apply or enforce in specific cases are, in those special senses, legal and legitimate. On the other hand, by means of judicial review judges may choose not to enforce or give effect to norms that are not legal or that are not morally permissible. In short, the process of judicial review constitutes the institutional instrument by which judges verify whether a given norm is entitled to judicial enforcement or not and act accordingly. In practical life, judicial review becomes operational as a result of the judges' own commitments to execute their basic, albeit abstract, moral duty to act in a legitimate way. It further follows that the process of judicial review derives from and is made morally legitimate—in principle—by the still more general principle of political morality that provides that “all political authorities in a state ought to act, as far as possible, in a legitimate way.”

See Tremblay, supra note 75, at 538–544.

Id . at 527–538.

Where a state is committed to the moral legitimacy of its system of laws and institutions, the institution of judicial review is both necessary and permissible. Yet, it does not follow that the judges should always nullify, in part or as a whole, all the norms that are not legal or legitimate. First, as recourses there are other technical devices; for example, the judges could interpret the norms in ways that may make them legally valid or morally legitimate. Second, in particular cases, legal and moral reasons might be trumped by prudential or pragmatic reasons; for example, where nullification is likely to provoke social chaos, arbitrary repression, greater injustices, or institutional loss of credibility it might be better for the courts, on balance, to enforce illegal norms or illegitimate laws. Finally, good faith and judicial responsibility require that the judges be fully persuaded, after weighing all the reasons, that the norm they are prepared to nullify is neither legal nor legitimate. A certain rational process of discussion, argumentation, and justification must be conducted prior to decision.

Second, for the purpose of undertaking their basic, abstract duty to act legitimately, judges must give a rational response to the following theoretical challenge. They must establish and recognize at least one norm (rule, principle, standard) specifying the conditions that legislation must satisfy in order to be accepted as legally valid and morally legitimate and, consequently, as entitled to judicial enforcement. These conditions must take the form of normative criteria of legality and normative criteria of legitimacy. Since such criteria are among the reasons justifying a judicial decision as to whether or not legislation is entitled to judicial enforcement, they must be determined and accepted by judges prior to such decision.

In T remblay , supra note 76, I argued that this theory, in Canada, corresponds to what I called the “Rule of Law as Justice.” See chs. 4, 6 and 7.

I used this phrase in id . ch. III.

I used this phrase in Tremblay, supra note 75, at 542. In this text, I maintained that there exists a normative and conceptual link between the criteria of validity or legality and the criteria of legitimacy. This means that over a period of time, the basic principles of constitutional law tend to resemble to the principles of political morality, as understood and enforced by the courts. See id . at 544–561. It is not necessary to develop this point here.

One might argue that where there is more than one reasonable interpretation of constitutional law and of political morality, the courts ought to consider respectfully the legislative response to judicial nullification when seeking the proper balance between constitutional values and social goals or public goods. But this view would miss the essential point. If no legislation is entitled to judicial enforcement unless it satisfies the criteria of validity and legitimacy recognized by the courts as binding, then the legislatures cannot, after the fact and on their own, enact corrective legislation that determines the criteria of constitutionality and legitimacy that ought to be applied by the courts in the process reviewing the particular law. Since the observance of the criteria of validity and legitimacy is a precondition of the legal validity and moral legitimacy of legislation, these criteria are logically antecedent to any redrafted or new law purporting to be valid and legitimate. This means that a law enacted by a legislature for the purposes of reversing or avoiding a judicial decision that had nullified prior legislation has no normative force, no authority, no right to be respected unless the judges who are asked to enforce it conclude that it satisfies the criteria of validity and legitimacy that are logically antecedent to it. In short, a law cannot establish its own criteria of validity and legitimacy.

This means that the courts can never simply defer to the legislative judgments embodied in particular corrective laws, purporting to establish the proper balance between constitutional values and policies, because the normative force and validity of such judgments are conditioned by constitutional standards that are logically prior to them. In essence, judges always have the final word with respect to the proper balance between constitutional norms and public policies. Moreover, the judicial final word is not morally illegitimate; it derives from the abstract and general principle of political morality requiring that the judiciary ought to act, as far as possible, in a legitimate way, and from the courts' commitment to maintain their own legitimacy. The judges who would enforce legislation without verifying whether it is entitled to judicial enforcement could undermine their own legitimacy.

The theory that courts and legislatures participate in a deliberative dialogue is, therefore, conceptually and normatively limited by the general conditions that judicial authority and decision making must satisfy in order to be accepted as morally legitimate, namely, the rule-of-law condition and the legitimacy-of-law condition. It follows that the force and effect of the legislatures' views, in particular cases, are also conditioned by or dependent on prior judicial judgments about the normative force and effect that ought to be given to these views and arguments, since the courts have already taken into account a set of criteria that are necessarily and logically antecedent to and independent of the expression of the views of the legislatures.

The thesis that the institutional dialogue between the courts and the legislatures would be a form of deliberation is not acceptable. Would it not be better to conceive of this dialogue as a form of conversation? There are reasons to think that the answer would be in the affirmative. The dialogical process shows that judicial decisions nullifying legislation express just one conception of the proper balance between constitutional values and public policies. Democratic institutions are almost always capable of expressing and imposing some other conception of the proper constitutional balance. Indeed, while the courts may emphasize fundamental principles and values, the legislatures may focus on social and economic policies. Still, each institution is entitled to stick with its particular set of judgments and concerns; the courts may enforce the constitution as they understand it, and the legislatures will remain free to realize their original objectives, and, for that matter, by way of the original legislative means, all in accordance with their own understanding of constitutional requirements. The judges may comply with the doctrine of judicial responsibility and execute their basic abstract moral duty to act in a legitimate way, but this does not prevent the legislatures from proceeding along a like course, to whatever extent they can. Accordingly, the courts and the legislatures may be seen as conversing together.

We may admit that the conception of dialogue as conversation constitutes a better, perhaps more accurate, description of the relationship that prevails between the courts and the legislatures. But how are we to understand the claim that this form of dialogue could legitimize the institution of judicial review? As we saw, a dialogue as conversation has no specific common practical purpose; it has no collective decision to make, no conflict to settle, no agreement to reach. Since it has no specific shared purpose, it has no collective practical judgment, action, or decision to legitimize qua dialogue. Consequently, a dialogue as conversation, in this sense, can hardly legitimize the institution of judicial review, much less court rulings nullifying legislation. Rather, such conversation constitutes a social and political fact, namely, that two institutions, disagreeing over the proper constitutional balance, exchange words, ideas, opinions, judgments, and experiences within a space of intersubjective meanings and institutional settings but without a specific commitment to reach practical mutual agreement.

An institutional dialogue theorist might argue that this is not the correct way to look at the matter. The kind of dialogue that describes the theory of institutional dialogue is a conversation, and it is as such that it has legitimating force. The reason is that, within the theory of institutional dialogue, the legitimacy of judicial review constitutes a “negative” claim. Judicial review is democratically legitimate because it does not prevent the democratic institutions from accomplishing their prior objectives; indeed, it does not forestall them from accomplishing these goals through the original means. Judicial review, then, would be democratically legitimate not because it possesses some positive democratic source or pedigree or justification but just because, ultimately, it would not be countermajoritarian.

The argument is interesting but somewhat confusing. First, it is not clear why we should understand the negative claim of legitimacy for judicial review in the context of the theory of “dialogue”. As described here, judicial review would be morally permissible only because the legislatures would have the last word. But if legitimacy derives from the fact that, ultimately, the legislatures almost always have the power to impose their will, then the only fact that matters for the purposes of legitimate lawmaking is the democratic character of the legislative process. In this case, the concept of dialogue as conversation does not add much either to the more traditional conceptions of democratic legitimacy—be they majoritarian, pluralist, or utilitarian—or to the traditional understanding of parliamentary sovereignty and undemocratic judicial review. The conversation that would characterize the dialogue between the courts and the legislatures, then, would do nothing, qua dialogue, to legitimize judicial review.

Second, the negative claim seems a very strange way of defending the institution of judicial review, here understood as the power of the courts not to give effect to democratic legislation that appears inconsistent with the courts' interpretation of the constitution. The negative claim justifies the legitimacy of judicial review at the cost of depriving it of its constraining power and meaning. It is significant that the ultimate argument supporting the negative claim is the existence of section 33's override provision. Consequently, the theory of institutional dialogue as conversation appears to be not so much about justifying the legitimacy of judicial review as about denying its authority. Yet, most influential institutional dialogue theorists postulate that the Charter values identified by the courts, in the process of judicial review, do constitute authentic constraints on the democratic process. Explaining and justifying the legitimacy of judicial review must make sense of these constraints.

This would be particularly true with the use of section 33.

See Cameron, supra note 54, at 1058–1059.

Id . at 1059. Kent Roach rightly maintained that dialogic theories “should not be confused with…judicial deference.” See Roach, supra note 19, at 489. Roach also criticizes Mills : the judicial deference manifested in Mills “may be in tension to judicial independence and the Court's anti-majoritarian role.” Id . at 502. Also, “undue deference to legislative interpretations of the Charter presents some danger of Parliament being a judge in its own majoritarian causes.” Id. at 503.

The notion that the courts and the legislatures participate in a conversational dialogue may be acceptable as a descriptive thesis. However, it is quite limited as normative theory regarding the democratic legitimacy of judicial review. Since this idea of dialogue has no specific and practical decision, action, or judgment to legitimize, it can hardly legitimize, qua dialogue, the institution of judicial review, where court rulings can nullify legislation. Insofar as the normative claim for judicial review is conceived in negative terms, it seems to deny both the importance of the dialogue as a legitimating fact and the very existence of what it is meant to legitimize, namely, the institution of judicial review.

The theory that institutional dialogue represents a form of conversation between the courts and the legislatures is no more acceptable than the theory that it represents a form of deliberation. Dialogue as deliberation could confer, qua dialogue, legitimating force on its outcomes. But this does not constitute an adequate representation of the kind of dialogue that can prevail between the courts and the legislatures. The doctrine of judicial responsibility and the abstract moral duty to act, to the greatest extent possible, in a legitimate way constitute two important limitations on the theory that the courts and legislatures participate in the kind of deliberation that could confer legitimacy on judicial review. By contrast, dialogue as conversation may constitute an adequate representation of the sort of dialogue that obtains between courts and legislatures. But it cannot, qua dialogue, legitimize the institution of judicial review or specific judicial rulings. Such dialogue is not designed to impart legitimacy to practical decisions, actions, or judgments. Insofar as the legitimacy of judicial review is conceived of in negative terms, then, not only does it not seem to be grounded on the fact or the principle of dialogue but it seems to deny the existence of what it is meant to legitimize, namely, the institution judicial review.

it should be emphasized again that our Charter 's introduction and the consequential remedial role of the courts were choices of the Canadian people through their elected representatives as part of a redefinition of our democracy. Our constitutional design was refashioned to state that henceforth the legislatures and executive must perform their roles in conformity with the newly conferred constitutional rights and freedoms. That the courts were the trustees of these rights insofar as disputes arose concerning their interpretation was a necessary part of this new design . 89

See Vriend v. Alberta , [1998] 1 S.C.R. 493, at para. 132.

Id . at para. 134 [emphasis added].

In carrying out their duties, courts are not to second-guess legislatures and the executives; they are not to make value judgments on what they regard as the proper policy choice; this is for the other branches. Rather, the courts are to uphold the Constitution and have been expressly invited to perform that role by the Constitution itself. But respect by the courts for the legislature and executive role is as important as ensuring that the other branches respect each others' role and the role of the courts. 90

Id. at para. 136 [emphasis added].

Democratic values and principles under the Charter demand that legislators and the executive take these into account; and if they fail to do so, courts should stand ready to intervene to protect these democratic values as appropriate . As others have so forcefully stated, judges are not acting undemocratically by intervening when there are indications that a legislative or executive decision was not reached in accordance with the democratic principles mandated by the Charter . 91

Id . at para. 142 [emphasis added].

Parliament has enacted this legislation after a long consultation process that included a consideration of the constitutional standards outlined by this Court in O'Connor. While it is the role of the courts to specify such standards , there may be a range of permissible regimes that can meet these standards. It goes without saying that this range is not confined to the specific rule adopted by the Court pursuant to its competence in the common law. 92

R. v. Mills , [1999] 3 S.C.R. 668, at para. 59 [emphasis added].

These passages are difficult to reconcile with the theory of institutional dialogue as deliberation. They may be consistent with some form of institutional dialogue as conversation, but then the theory would be descriptive. In effect, the theory becomes a description of the social and political state of affairs constituted by the dynamic process by which the institutions of the state contribute to the evolution of the law. The courts are the trustees of constitutional values insofar as disputes arise concerning their interpretation; and the legislatures must act within the constitutional limits as understood and enforced by the courts. In this ongoing “conversation,” new constitutional questions produce new understandings, and new constitutional positions and new constitutional values emerge. It may be the case that, in the long run, the legislatures or the electors impose their constitutional conceptions on the legal order as understood and enforced by the courts. But such an eventuality is not necessary, since the legal state of affairs in the here and now depends, ultimately, on authoritative judicial judgments, and the question whether a “conversation” has happened or not would be simply an empirical question of fact.

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What is judicial review and why doesn't the government like it?

Legal challenges to ministerial decisions have recently proved difficult for the Conservatives

Downing Street’s frustration over what it believes is excessive use of the judicial review process to overturn ministerial decisions – this week preventing deportations – has focused political attention on the complex courtroom process.

What is judicial review?

It is a means of questioning the lawfulness of decisions made by public bodies, such as local councils, government departments, police forces or health authorities. Cases usually start in the administrative division of the high court and involve a claimant alleging that an official or minister made a mistake in law.

Do applications always go to trial?

The first stage of an application depends upon a judge deciding there is a legitimate point of law to examine and granting permission for the hearing to go ahead. Often judges hear the permission stage and the substantive arguments at the same time in what is known as a “rolled-up” hearing. The challenged public body responds to the claim, and other parties with an interest in the issue can intervene in cases.

Why is there such concern over judicial review?

The government was defeated in two Brexit judicial reviews in the supreme court – one on article 50 and the other on the prorogation of parliament – although both resulted in parliament’s powers being re-asserted. These outcomes have re-sharpened the suspicion of judicial review claims.

The former supreme court justice Lord Sumption last week argued that there was evidence of excessive and inappropriate use of judicial review to overturn government ministers’ decisions. He noted, however, that: “The next generation [of judges] coming up are more cautious about operation of their powers.”

Having complained for so long about European judges supposedly interfering in UK law, the Tory refrain appears to be switching back to traditional resentment of British judges and courts thwarting political decisions.

Have the number of judicial reviews increased?

The Bar Council points to the fact that applications for judicial review fell by 44% between 2015 and the end of September 2019.

Access to judicial review was significantly restricted by the coalition government in 2013 when it tightened the right to use legal aid for challenges. It also raised court fees. The justice secretary at the time, Chris Grayling , said he was determined to drive out “meritless applications” which were used as a “cheap delaying tactic”.

How might the government further limit judicial review cases?

The Cabinet Office is overseeing delivery of the constitution, democracy and rights commission which was promised in the Queen’s speech. Any plans to change the judicial review process may well be included; the commission’s scope, procedures, personnel and remit have not yet been decided.

Who is defending the right to judicial review?

Gina Miller, the victor in both the article 50 and prorogation cases , said last week she was concerned about proposals to restrict judicial review challenges against the government. “I would argue there needs to be an increase [of legal scrutiny of government decisions],” she said. “It’s not just about political questions. What will this attack mean to social justice?”

Amanda Pinto QC, the chair of the Bar Council, said: “Judicial review is a hugely important tool in a democratic society by which decisions of public authorities, including government, are subject to legal scrutiny.”

Simon Davis, the president of the Law Society of England and Wales, said: “Judicial Review is a vital part of the checks and balances necessary to protect people from powerful institutions. It underpins the rule of law.”

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Why is judicial review important?

Because the power of judicial review can declare that laws and actions of local, state, or national government are invalid if they conflict with the Constitution . It also gives courts the power to declare an action of the executive or legislative branch to be unconstitutional.

Why is judicial review so important quizlet?

Why is judicial review important ap.

Judicial review is the power by which the Supreme Court can review actions of the other branches of government (executive and legislative), and declare them unconstitutional. This is a major check that the judicial branch has on the other branches . The concept of judicial review was established by Marbury v. Madison.

Why is judicial The most important?

The Power of the Courts The federal courts' most important power is that of judicial review, the authority to interpret the Constitution . When federal judges rule that laws or government actions violate the spirit of the Constitution, they profoundly shape public policy.

Why is the power of judicial review important to us democracy?

Judicial review: crash course government and politics #21.

Why is there a need for a judiciary in our society?

The judiciary plays a fundamental role in society and for the upholding of social order . Its primary function, in fact, is to resolve conflicts through the application of pre-existing norms or, in some cases precedents, which have been issued through legitimate procedures, as recognized by the political system.

What would happen without judicial review?

what would happen if there was no judicial review? because the constitution would be rendered unenforceable without it . if federal officials violated the constitution, the only recourse would be in the political process, a process unlikely to offer little protection to those whose rights have been violated.

How does judicial review empower the Supreme Court?

Judicial review empowers the Supreme Court within the system of checks and balances by giving the Supreme Court the authority to check the legislative and executive branches .

Does judicial review strengthen the government?

Marbury v. Madison strengthened the federal judiciary by establishing for it the power of judicial review , by which the federal courts could declare legislation, as well as executive and administrative actions, inconsistent with the U.S. Constitution (“unconstitutional”) and therefore null and void.

Why is judicial review such an important power for the Supreme Court quizlet?

Supreme Court's power to declare an act of congress or an act of the states unconstitutional. Most important power of the Supreme Court, very significant because 9 people can overturn an act of congress .

What is judicial review in simple words?

Judicial review is the power of an independent judiciary, or courts of law, to determine whether the acts of other components of the government are in accordance with the constitution . Any action that conflicts with the constitution is declared unconstitutional and therefore nullified.

What does judicial review refer to?

Judicial review is the idea, fundamental to the US system of government, that the actions of the executive and legislative branches of government are subject to review and possible invalidation by the judiciary .

Is judicial review effective?

In one sense, it is obvious that judicial review is a valuable tool for the safeguarding of democracy. It is an effective means of ensuring that executive public bodies do not act illegally , as Sultan Azlan Shah said so elegantly. It will be recalled that illegality was Lord Diplock's first head of review.

Is judicial review a good idea?

As many scholars have previously argued, judicial review is a safeguard against the tyranny of the majority, ensuring that our Constitution protects liberty as well as democracy . And, indeed, the founding generation expected judicial review to operate as just such a protection against democratic majorities.

What is judicial review how does it help in protecting our fundamental rights?

Judicial review has two important functions, like, of legitimizing government action and the protection of constitution against any undue encroachment by the government . Judicial review is considered a basic structure of the constitution (Indira Gandhi vs Raj Narain Case 1975).

How did judicial review become an important part of the American court system?

The best-known power of the Supreme Court is judicial review, or the ability of the Court to declare a Legislative or Executive act in violation of the Constitution, is not found within the text of the Constitution itself. The Court established this doctrine in the case of Marbury v. Madison (1803) .

What is judicial review explain with the help of examples?

Judicial review is one of the checks and balances in the separation of powers: the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority . The doctrine varies between jurisdictions, so the procedure and scope of judicial review may differ between countries.

How does judicial review ensure a balance of power in the United States?

The Supreme Court and other federal courts (judicial branch) can declare laws or presidential actions unconstitutional, in a process known as judicial review. By passing amendments to the Constitution , Congress can effectively check the decisions of the Supreme Court.

What is the purpose of judicial review and what are the grounds of review for the legality of administrative action?

The most important way in which these rights can be enforced is by judicial review. This means that any person who is unhappy with an administrative decision can challenge the decision in court . There, they can argue that the decision is a violation of the rights to just administrative action.

Why do you think it is important for the Justices to be independent?

Judicial independence is important to you because it guarantees that judges are free to decide honestly and impartially, in accordance with the law and evidence, without concern or fear of interference, control, or improper influence from anyone .

Why is judicial review controversial?

1) Majoritarian: Critics argue that judicial review is illegitimate because of its antimajoritarian nature . 2) Participatory: Critics argue that judicial review is illegitimate because it takes final decisions on important political controversies out of the hands of ordinary citizens.

What are the 3 main functions of judiciary?

• (1) It interprets the laws: ...
• (2) Protector of Civil Rights: ...
• (3) Decides the cases: ...
• (4) Custodian of fundamental rights: ...
• (5) Guardian of the Constitution: ...
• (6) Decides the conflicts of jurisdiction between the Centre and State Governments in Federations:

What is the power of judicial review?

The federal judiciary has the authority to review actions of the legislative and executive branches to verify that they comport with the Constitution see Marbury v. Madison). However, judicial review does not extend to all issues. A case is justiciable if it is the type of dispute that a court can properly adjudicate.

What is the role of judicial review in American government quizlet?

Judicial review is the power of federal courts to review laws of Congress and acts of the executive branch in light of the Constitution, with the possibility that they will rule them to be unconstitutional . The Supreme Court can check the state and local governments through this power as well.

What is the judicial review quizlet?

Judicial review refers to the power of a court to review a statute, treaty or administrative regulation for constitutionality or consistency with a a superior law . An attorney's spoken statements and presentation before a court supporting or opposing the legal relief at issue.

Judicial Review in India

Judicial review and indian constitution:, importance of judicial review:.

• It ensures the Protection of Fundamental Rights Guaranteed by the Constitution,
• It maintains the supremacy of the Constitution,
• It also regulates the Center-State matters and their relations by Art. 246 of the constitution, by providing the 3 constitutional lists.
• It safeguards the Independence of Judiciary,
• It guarantees Impartiality and Fairness in the actions of the Legislature and Executive,
• It protects the basic structure of the constitution as well.

Limitations of Judicial Review:

• Judicial Review limits the actions of the government as, it is only permitted to verify the legality of the procedures used to reach to a certain legal decision
• The judicial pronouncements given by the judges for one case, becomes the basis for deciding other cases as well.
• Repeated court intervention can undermine people's confidence, belief and support in government's integrity, quality and effectiveness.
• The judiciary is deemed from interfering in the political questions, policies and matters except absolutely essential.
• Since, the judgments can be influenced by personal or selfish motivations, such decisions are detrimental to the general public.
• If the courts assume full and arbitrary control over judicial review, it will result in government agencies providing poor performances.
• In India, attention is paid to the separation of functions, rather than focusing on the separation of powers.
• The concept of separation of powers is not strictly followed in the judicial review. However, to ensure this, a system of checks and balances has been introduced, empowering the judiciary to strike down or overturn any laws and orders passed by the legislature that is unconstitutional.

Scope of Judicial Review;

Classification of judicial review:.

• Review of Judicial Decisions: Reviewing or Examining a court's decision basically refers to examining it in such a way to determine whether the Supreme Court's decision was correct or not. In simple terms, it also refers to the court's authority to determine the constitutionality of the measures taken by state, federal legislatures and courts.  
• Review of Legislative Actions: Article13 of the Indian constitution, talks about the judicial review of all the enacted laws, and such an authority may promulgate unconstitutional laws, regulations, statutes, ordinances, rules, and ordinances, which granted to the High Courts and Supreme Court of India. All those actions which violate the Fundamental Rights or other important provisions of the constitution, are declared as void and it is declared to be unlawful. We can trace the marks of judicial review of the legislative actions in the landmark cases like; I. C. Golaknath and Others. v. State of Punjab and Another . 1967; Kesavananda Bharti and Others. v. State of Kerala and Another, 1973.  
• Illegality: The acts and verdicts of the decision makers can be declared as illegal if they do not follow the law, or if they act beyond their stipulated powers.  
• Irrationality: The courts can also interfere for quashing any decision if they think that it is arbitrary, henceforth, making the move of the decision makers as "unreasonable" or "perverse"  
• Procedural Impropriety: The onus is on the authority to act impartially before taking and deciding any matter, since, any public body must not act unethically since, it amounts to the abuse of power.  

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The Untold Story of the Network That Took Down Roe v. Wade

A conservative Christian coalition’s plan to end the federal right to abortion began just days after Trump’s 2016 election.

Credit... Photo illustration by Vanessa Saba

Supported by

By Elizabeth Dias and Lisa Lerer

Elizabeth Dias and Lisa Lerer are reporters for The Times and the authors of “The Fall of Roe,” from which this article is adapted. They spoke to more than 350 people and reported from 16 states.

• May 28, 2024

It happened almost by accident, over cocktails. Exactly the kind of accident that Leonard Leo intended to happen at his Federalist Society’s annual conference — a three-day gathering of the conservative tribe and a strategy session for right-wing lawyers, officials and judges that drew both big names and those who had lower profiles but were no less ambitious.

Nine days after Donald Trump won the 2016 election, the halls of the Mayflower Hotel, just blocks from the White House, were adorned with twinkling Christmas lights and abuzz with the possibilities of a future that had changed overnight. Hillary Clinton, the woman the anti-abortion movement feared more than perhaps anyone, had failed to win the presidency. And Leo and the conservative legal movement that he worked for years to create were about to reclaim power. With that power would come the chance to do what seemed unthinkable until this moment: strategize to take down Roe v. Wade.

For more than 40 years, a passionate band of conservative and mostly Christian activists tried to find ways to undermine the 1973 Supreme Court ruling that guaranteed a constitutional right to abortion and revolutionized America. But they had been losing. The country appeared to be moving away from them, increasingly secular and increasingly liberal on sexual matters. The anti-abortion movement lacked the critical mass needed in Washington and the control of courts to end federal abortion rights. But now, with Trump, who promised to name “pro-life judges,” in the White House, there was a new vista before them.

Leo, the force behind this network, arrived at the Mayflower after spending the day at Trump Tower in New York. He met with the president-elect and his top aides about turning the list of Supreme Court justice candidates that Leo curated into legal reality. Republicans in the Senate had taken a risk by refusing to hold hearings to fill the seat left open by the death of Justice Antonin Scalia toward the end of Barack Obama’s presidency. Now, with Trump positioned to nominate one of its own, Leo’s movement stood on the verge of an enormous triumph, with a court that would once again be dominated by Republican-appointed justices — and those who were firmly on the side of restricting abortion. Trump confirmed in the meeting that if someone was not on the list, that person would not be considered.

At the Mayflower, those on the list were not just names on paper. At least nine judges of Trump’s 21 possible Supreme Court nominees at the time were scheduled to speak, and most of the other hopefuls attended at various points. So did some of those who already held seats on the highest court. Leo opened the conference by introducing his friend Justice Samuel A. Alito Jr. to the ballroom, overflowing four deep in the balcony. The mood was both exuberant and serious as the new power brokers considered the opportunities ahead.

So when it was time for cocktail hour, the young solicitor general of Wisconsin, Misha Tseytlin, who had clerked for Justice Anthony M. Kennedy, was surprised when he overheard someone say that Roe v. Wade would never be overturned.

There was no reason to think overturning Roe was impossible now, Tseytlin believed. Republicans had the White House, an open Supreme Court seat and legislatures passing a flood of laws restricting abortion in states across the country. If there really was no right to abortion in the Constitution, as many at the Mayflower believed, this was the time to prove it. And Tseytlin had an idea of how to do just that.

The story of how an elite strike force of Christian lawyers, activists and politicians methodically and secretly led the country down a path that defied the will of a majority of Americans, who wanted abortion to remain legal, has been hidden until now. The ultimate aim of this behind-the-scenes conservative coalition, which powered one of the most significant political resurgences the United States has ever seen, went far beyond questions of when — and if — a pregnancy can be legally ended. For them, the fall of Roe was not an end but a beginning in their effort to make all abortion illegal and, in effect, roll back the sexual revolution. It was not only a political battle but a spiritual mission, rooted in their Christian faith and their belief that they were fighting for the highest moral stakes of the modern age. Their opponents didn’t see what was coming until it was far too late. After so many decades of taking Roe for granted, supporters of abortion rights had grown dangerously complacent and disorganized in ways that made them slow to appreciate the severity of the threat.

This investigation is built on more than 350 interviews with people who had knowledge of these events, including elected officials, lawyers, activists, doctors and ordinary people whose lives were changed by the fall of Roe. The reporting spanned 16 states and Washington, from statehouses to the White House, and a review of previously unreported documents.

In the gilded halls of the Mayflower, amid the throngs of lawyers, Tseytlin was thinking about how to get the Supreme Court to take an abortion case. A rarity within the movement, he was not particularly religious; his family had left the former Soviet Union as Jewish refugees when he was a child. But he had long opposed abortion for moral reasons.

Across the country, anti-abortion activists had worked to help pass laws in nearly a third of states that banned abortion after 20 weeks of pregnancy, defying the standard set by Roe for legal abortion up to fetal viability, at about 24 weeks. Most of those bans had not been challenged by abortion rights lawyers — who feared they might be upheld by the Supreme Court — creating a new national standard, leaving them in effect in states where Republicans controlled the legislatures, like South Carolina, West Virginia and Wisconsin. Even when one of the new laws went before the Supreme Court in Whole Woman’s Health v. Hellerstedt in 2016, the abortion rights lawyers arguing the case chose to focus only on the provisions regulating clinics — and left the 20-week Texas ban untouched.

Now Tseytlin posed a theoretical question, according to people familiar with the discussion: What would happen if a state tried to pass an abortion limit at, say, 15 weeks? A slightly earlier restriction could force the court to examine the viability rule — and shake the very foundations of Roe. Could they push the number of weeks back just to the point at which their opponents would challenge it?

Tseytlin had a hard time believing that Chief Justice John G. Roberts Jr. or Kennedy, who had come to inhabit a role as the court’s swing vote, would strike down a ban that was just a few weeks earlier than 20. Many restrictions in Europe were drawn at 12 or 15 weeks.

Tseytlin mused about all of this to a new acquaintance connected with the Alliance Defending Freedom, the Christian legal organization that Leo praised in an interview as “formidable” and “a real major force in the conservative legal world.” (A.D.F. participated in multiple on-the-record interviews over several months, but later, in response to repeated questions, a spokeswoman disputed what she referred to as this article’s “inaccurate and mischaracterized” assertions.)

Even during the political exile of the Obama administration, A.D.F. had won five major cases at the Supreme Court, including ensuring the right to pray at government meetings and securing an exception for Christian colleges from the Affordable Care Act’s requirement to pay for insurance coverage for contraception. Their victories consistently carved out additional space for Christianity in American public life. Now A.D.F. saw a new chance to advance a body of law to attack abortion rights. It was a window that its lawyers believed might not be open for more than a few years, and they were determined to take advantage of it.

In the summer of 2017, A.D.F. convened hundreds of top conservative leaders at the luxurious Ritz-Carlton in Laguna Niguel, Calif., for a private four-day summit. The stated goal was to discuss religious freedom. But the deeper ambition was to develop an agenda for the new Trump era. The guest list included 10 state attorneys general and solicitors general; a collection of the most powerful Christian lawyers in the country; and Jeff Sessions, Trump’s new attorney general. Sessions initially kept his remarks, which offered a strident defense of religious freedom and A.D.F.’s work, a secret from the public.

Like the Federalist Society, A.D.F. aimed to connect lawyers and legal allies to further its goals. But A.D.F. was also profoundly different. It was an explicitly conservative Christian legal-advocacy project, designed to bring together lawyers, elected officials and activists to achieve policy goals in line with its religious mission.

Now A.D.F.’s work was growing, and largely under the radar, as it sought to become a mainstream Christian rival to the A.C.L.U. No one on the outside knew just how extensive the network’s ambitions were, or that it was beginning to lay the groundwork to challenge Roe.

A.D.F. had invited another delegation that sought to keep its participation off the official record: a team from the Wisconsin attorney general’s office, including Tseytlin. When a reporter from the USA Today Network-Wisconsin later unearthed the delegation’s participation , a state spokesperson simply said that Tseytlin was a leader of a session at the conference. No one disclosed what it was about. Tseytlin’s remarks that day remained unknown to the public. But Tseytlin, a man most Americans had never heard of, was there to present his legal strategy to end Roe. Lawyers had a moral duty to act, Tseytlin told the group, according to participants. He proposed his idea for an abortion ban that set a limit earlier than 20 weeks to undercut Roe more openly.

Even to those in the room with Tseytlin, it was far from clear that the plan they were hatching would, just five years later, lead to the most consequential Supreme Court ruling on abortion rights in half a century. The early months of the Trump administration had been good for A.D.F. The group now had some 3,000 allied lawyers in its network and brought in more revenue than the A.C.L.U. Part of A.D.F.’s power was built from events like the one in Laguna Niguel that brought together state attorneys general and solicitors general from across the country with like-minded lawyers to strategize on priorities. Some of those guests were reimbursed for travel expenses; for this summit at the Ritz-Carlton, the group paid part of Tseytlin’s travel costs.

The organization asked guests to maintain the secrecy of their discussions, as it often did, according to participants. A.D.F. did not disclose its list of allies and encouraged lawyers involved with its efforts to not even acknowledge attending its events, according to attendees. A.D.F. declined to comment on Tseytlin’s presentation, or even confirm that he spoke, saying the details of its conference were confidential.

The idea of moving up bans from 20 weeks faced resistance from some anti-abortion activists. Even with Trump in office, the movement remained divided over the best legal path to end abortion rights. Some worried that an earlier limit would be too aggressive for the justices. If their test case got to the Supreme Court and lost, it could set their movement back years.

But another flank of the movement wanted to take advantage of this moment of power and move more aggressively to pass laws that flouted Roe’s viability requirement. Arkansas had already passed a 12-week law, and it had been blocked by the courts, so that seemed too early. A.D.F. lawyers decided to get a state to ban abortion at 15 weeks. The spark of Tseytlin’s cocktail-hour conversation became a flame.

The goal would be to remove Roe’s viability line without directly asking the court to take the more drastic — and more politically inflammatory — step of directly overturning the decision. It could be the first move in a longer strategy to end legal abortion entirely.

A.D.F.’s mission was to draft airtight legislation that would survive the journey through conservative statehouses and the inevitable legal challenges in the lower courts in order to eventually arrive at the Supreme Court. A.D.F. lawyers then identified states where they believed the bills had the best chance. They looked for favorable governors, attorneys general and legislatures. Three states stood out: Arkansas, Mississippi and Utah. Each was in a different circuit-court region. The thinking was that if the laws were debated in different circuit courts and the courts issued conflicting rulings, the Supreme Court would be more likely to take up one of the cases and arbitrate among them. It was this kind of conflict — what lawyers call circuit splits — that often attracted the interest of the justices, who saw part of their mandate as ensuring that the law was applied consistently across the country. “A circuit split would mean there had to be a resolution,” says Marjorie Dannenfelser, the head of Susan B. Anthony Pro-Life America, a top political anti-abortion group, who was on A.D.F.’s board at the time.

While A.D.F. tried to reverse-engineer its way to the Supreme Court, anti-abortion activists on the state level were also trying to advance tighter bans. A.D.F. tracked them all. Every legislative session was another opportunity to move forward. The states where residents were most religious were the ones where the legislatures were pushing for abortion restrictions. And at the top of that list, with 59 percent of adults identifying as “very religious,” according to Gallup, was Mississippi.

Since 2004, there had been only one clinic in Mississippi where women could get an abortion: Jackson Women’s Health Organization, with its unmistakable bubble-gum-pink walls. The Pink House, as everyone called it, was just a seven-minute drive from the State Capitol, where lawmakers tried to find ways to shut it down with bill after bill. And again and again, the Pink House and its lawyers at the Center for Reproductive Rights, a legal-advocacy group that supported abortion rights, pushed back in the courts, arguing that the laws violated the standards set in Roe and Planned Parenthood v. Casey, the 1992 Supreme Court decision that upheld Roe (but allowed states further latitude in restricting abortion).

In the fall of 2017, a few months after Tseytlin’s presentation at A.D.F.’s Ritz-Carlton summit, Jameson Taylor, a conservative Christian lobbyist, started what he called his annual “intelligence gathering” on what anti-abortion legislation he wanted to push in the next session of the Mississippi Legislature. He made the rounds to various Christian groups and called different policy experts, including Kellie Fiedorek, a young lawyer who worked for A.D.F. Her job was to build out the A.D.F. network in the states, to push its model legislation on various issues through the statehouses and to create an army of allied local lawyers who could defend it.

This was the next step of a tightly held plan, whose details have never been revealed to the public. Soon Taylor was listening as A.D.F. lawyers made their case that the Supreme Court might uphold a law that banned abortion before Roe’s standard of viability — and that Mississippi would make an ideal testing ground. Denise Burke, one of the movement’s top authors of anti-abortion measures at A.D.F., explained how the model legislation she was writing would work, Taylor recounted. To end the federal right to an abortion, activists needed a law that could actually reach the Supreme Court. Passing a ban that was too aggressive would be categorically struck down in the lower courts.

Burke and A.D.F. were drafting the legislation with Kennedy in mind. He was a practicing Catholic but had ruled in favor of abortion rights in the landmark cases of Casey and Whole Woman’s Health. But he had also criticized abortion later in pregnancy in Gonzales v. Carhart, where he wrote the majority opinion upholding a ban on so-called partial-birth abortion. Now they hoped he might be a swing vote once again, this time to uphold a law that would nudge an abortion ban earlier in pregnancy and, in the process, eradicate the underpinning of Roe.

The legislation was written in a way that suggested it was grounded primarily in medical reasoning. But it featured specific legal language that aimed directly at A.D.F.’s real target. Roe had called the developing embryo and fetus “potential human life.” This bill described it as “an unborn human being” and highlighted specific details of prenatal development as evidence. The legislation stated that the United States was one of seven countries in the world to allow for abortion after 20 weeks of pregnancy, a way to argue that the country was an outlier among developed nations.

The bill picked quotes from the decisions in Roe and Casey that acknowledged that states had an interest in protecting “the potentiality of human life” and “the life of the unborn.” A.D.F.’s idea was to design the legislation to draw out what it saw as an inherent conflict in those two rulings — each allowed abortion before viability but also said that states had an interest in preserving potential life. The bill would argue that Mississippi was doing exactly what the Supreme Court allowed and force the court to reconcile the difference.

Taylor knew a 15-week ban would criminalize only about 3 percent of the roughly 2,600 abortions that were performed in Mississippi that year. But stopping procedures was not the point. A.D.F.’s primary goal was to write bills as a litigation strategy, not draft laws that would make for the strongest public policy or end the greatest number of abortions. The Mississippi bill was a legal tool to provoke a Supreme Court challenge to Roe — and set in motion a much larger plan to eventually end all abortion in America.

Some lawmakers in Mississippi worried that they would be sued if the bill passed and did not want to be saddled with the exorbitant cost such litigation could bring. But A.D.F. had a plan for that too, offering to have its lawyers defend the law at no cost to the state. This free legal counsel was a selling point for Taylor when he lobbied the legislators to take up the bill.

And Taylor had an important ally in the statehouse whom he knew he could count on to push an anti-abortion bill: Representative Becky Currie, a nurse, an observant Christian and at the time a three-term legislator who was one of the state’s most ardent advocates for the cause. “I’ve been pro-life since I was 18 and pregnant,” she said in an interview. “The more we worked on the bill, it just felt anointed. You just know when it was right.” She sponsored and introduced the bill A.D.F. wanted, called the Gestational Age Act, in early 2018.

Currie’s experience as a nurse shaped her political views. She often told the story of an incident in the hospital as a young nurse when a pregnant woman came in and delivered far too early. The details varied in her telling — sometimes the premature infant was a girl, at others a boy, sometimes it was 15 weeks, at others 14. But what Currie remembered most was that she waited until the heart stopped so she could put the remains in a plastic container to send to the lab. What Currie felt she understood about what happened was that the fetus “wanted to live.”

“I just never got over that,” she remembered.

Currie was exactly the kind of woman anti-abortion activists in Washington had strategized to make the face of their movement. A single mother, Currie had decided against having an abortion but still fulfilled her dream of becoming a nurse and then a politician. She could speak personally and authentically about the subject and her faith. Across the country, Republican women made up less than 10 percent of state legislators from 2008 to 2017, but they were significantly overrepresented as sponsors of anti-abortion bills. Of the more than 1,600 anti-abortion bills introduced during that period in state legislatures, nearly half had a female Republican co-sponsor, and a third had a female Republican as the primary sponsor. It became more complicated for Democrats to paint abortion opponents as anti-woman when women were leading the charge.

But even as Currie proudly championed the bill, she would not know the full story behind it until after Roe fell more than five years later. In an interview, she explained that she thought her vision for a 15-week cutoff, rooted in her foundational story of the beating fetal heart, had driven the plan. No one had told her that A.D.F. had coordinated its strategy with Taylor before their meeting, or that 15 weeks was part of its specific legal plan to undermine Roe, she said. Or that Tseytlin had brainstormed this possibility at Leonard Leo’s Federalist Society cocktail hour and advanced it at an upscale California resort alongside Republican leaders and attorneys.

When Gov. Phil Bryant of Mississippi signed the bill into law, with Currie smiling next to him, it became the tightest restriction on abortion in the nation. It made no exceptions for rape or incest, just a narrow provision to preserve the life of the woman or in cases of “severe” fetal abnormality. Less than an hour later, Jackson Women’s Health Organization — the Pink House — filed a lawsuit through their attorneys at the Center for Reproductive Rights. The Pink House performed abortions only until 16 weeks of pregnancy, the center’s lawyers wrote, and had done just 78 abortions when the fetus was identified as being 15 weeks or older in 2017.

Going after that small fraction, of course, was exactly the plan. Not too early in pregnancy and not too late, but exactly the line that might compel the Supreme Court to wade back into the subject of abortion. “We were seeking to be incremental and strategic,” Taylor said. Christian activists, he said, were learning to control their “moral passion” so as not to lose sight of their long-term goal.

There were still so many unknowns. For the law to serve its intended purpose, anti-abortion activists needed a majority on the Supreme Court. A.D.F. attorneys and their allies like Tseytlin had designed the legislation to target Kennedy, but what they couldn’t foresee was that Kennedy would retire that summer, allowing Trump to fill a second seat, this time with Brett Kavanaugh. Now conservatives had a 5-4 split on the Supreme Court, with Kavanaugh joining Roberts, Alito, Clarence Thomas and Neil Gorsuch. And there was more to come.

“As a Christian,” Currie said, “sometimes you don’t know God’s plan, and he kind of makes things happen.”

In her Virginia office just across the Potomac River from Washington, Marjorie Dannenfelser, of the Susan B. Anthony List (now known as Susan B. Anthony Pro-Life America) and the A.D.F. board, had a detailed map drawn on a wall-size whiteboard. From a distance, it looked like the kind used by political campaigns to track polling and turnout, swing districts and congressional votes. But this one was color-coded to indicate states where Republicans held both the state legislature and the governor’s mansion and was partitioned by circuit-court-of-appeals jurisdiction. By early 2019, Republicans held complete control of state governments in 22 states, giving them total power over abortion legislation. Some 20 cases, with different legal strategies to gut Roe and Casey, were in litigation in lower courts. A magenta triangle meant the state had passed a “heartbeat bill,” generally a ban that started around six weeks; a green square signified a “pain-capable” abortion law, typically a 20-week ban. Red stars showed the federal appeals courts where judges nominated by Republicans outnumbered those nominated by Democrats — of the 11 on the board, they controlled seven. It was a map of how all the laws were moving up toward the ultimate court that mattered.

And now, on Sept. 18, 2020, with the news of Justice Ruth Bader Ginsburg’s death, Dannenfelser and her compatriots could capture another majority. The kind of Supreme Court supermajority that could take down Roe.

Trump introduced Amy Coney Barrett as his nominee in the Rose Garden, in the same place where Bill Clinton introduced Ginsburg in 1993. Back then, Dannenfelser was 27 and dreaming of carving out a more powerful place for conservative anti-abortion women in Washington. That was half a lifetime ago. Now, at 54, she and those women sat in the Rose Garden watching Barrett, a Catholic mother of seven whom Trump had said he had been “saving” to succeed Ginsburg, become the avatar of the culture they wanted to usher in for America.

Barrett was both Christian supermom and high-powered legal scholar, elite and outsider, a combination of the more secular conservative Federalist Society credentials and the beliefs of the emerging Christian legal movement. This new iteration of conservative feminism didn’t argue that women’s gains should be rolled back or that women should not be professionally ambitious. But it wanted those advances not to come at the expense of ideals of motherhood, Christian morality and the centrality of human life at conception.

Seven days before the 2020 presidential election, Leonard Leo tuned in from his home in Maine to watch his close friend Clarence Thomas swear in Barrett to the court. Watching her raise her right hand felt like the culmination of the entire project. It was, he said in an interview, “exhilarating.” Trump had become the most successful anti-abortion president America had ever known. His administration transformed the judiciary. With his speech to the March for Life in 2020 — the first time a sitting president attended — and graphic comments in his 2019 State of the Union address about how abortion providers “execute a baby,” he changed political expectations and red lines for Republican presidents. What Trump and his Republican allies had done was to change the country by leveraging political force to conquer the courts. Trump had promised conservative Christians that “Christianity will have power.” And now that vision was at the center of a Republican Party they had remade.

Scott Stewart had never set foot in Mississippi. But Donald Trump’s defeat in the 2020 election thrust the young lawyer from the Department of Justice onto the job market, and Lynn Fitch, Mississippi’s attorney general, had reached out. She needed a new solicitor general to lead the state’s biggest cases. Fitch’s team found Stewart’s name tucked into a pile of résumés from the Republican Attorneys General Association, a group that had received more than $13 million from Leo’s network of organizations and whose executive director used to work for the Federalist Society.

Over the past decade and a half, the job of state solicitor general had become a coveted slot for ambitious young lawyers, even a path to more prominent posts like judgeships. For Stewart, the opportunity was ideal — representing a Republican state when there was a Democratic president offered the potential for high-profile conflict. And there was the lure of Dobbs v. Jackson Women’s Health, the Mississippi case named for its petitioner, Thomas Dobbs (whose name was on the case in his capacity as a state health officer), which had been appealed up to the Supreme Court. Dobbs could be Stewart’s first chance to argue a case before the justices.

Stewart had clerked for Judge Diarmuid O’Scannlain, a pugnacious voice for right-wing judicial thought on the liberal Court of Appeals for the Ninth Circuit, and for Clarence Thomas, parlaying his conservative credentials into a post on Trump’s transition team, assessing the legality of various potential policies. When he got the job in Mississippi, a friend he had worked with at Gibson Dunn, a law firm known in Washington as a conservative powerhouse, reached out to congratulate him and share advice on becoming a new solicitor general. It was Misha Tseytlin.

Now Fitch and Stewart watched the Supreme Court seem to ignore their case for months. And like their opponents, they found the apparent indecision strange. Everyone had a theory about why the justices were dragging their feet. Maybe they would decide to not hear the case at all.

The silence broke one morning in May 2021. Fitch was on her way to the airport after attending an event hosted by the Republican Attorneys General Association. That weekend, the organization held an exclusive gathering at a private island on the secluded coast of southeast Georgia nestled between the marsh and the sea. There, corporate bigwigs schmoozed with top state law-enforcement leaders, people like Fitch, who would often determine the fate of their interests in America’s highest courts.

Now Fitch stared at the text from her chief of staff, Michelle Williams, trying to absorb the magnitude: “We just got cert.” The Supreme Court had agreed to hear the case that could strike at Roe. The hopes of the conservative movement, and the fears of those who supported abortion rights, rested with Mississippi.

Stewart had to decide on a strategy. Fitch’s petition for certiorari focused on upholding the Mississippi law and mentioned the possibility of overturning Roe only in a footnote: “If the Court determines that it cannot reconcile Roe and Casey with other precedents or scientific advancements showing a compelling state interest in fetal life far earlier in pregnancy than those cases contemplate, the Court should not retain erroneous precedent.”

Stewart knew that a lot of lawyers would encourage him to continue down that easier path, to simply argue that Mississippi’s law should be upheld. To not push for the complete overturn of Roe but to chip away — as the movement had for so many decades — and get the court to undo the viability standard. But for Stewart, these circumstances were different from those in the past. Trump had pushed their cause from the biggest bully pulpit in the land. Conservatives now had a majority on the court that seemed to be on their side.

It was not a moment for compromise, Stewart reasoned, according to people familiar with his thinking. It was a lesson he had learned from Thomas, his former boss and mentor, who was known to hold the line without deviation. He would be steadfast: Roe and Casey were wrong and must be reversed.

Within weeks, in early June 2021, A.D.F. lawyers were on flights to Jackson. It was a crucial moment for the entire anti-abortion coalition. But even after years of pushing for this singular goal, the coalition was not a monolith. Stewart wanted to openly ask the Supreme Court to overturn Roe. A.D.F. also wanted Roe overturned, of course — its ultimate target was to ban abortion nationwide at conception — but it favored a more limited, less risky approach, lawyers at the organization recalled in a series of interviews. And they saw the Dobbs case as their project. Now they just had to make sure Stewart and Fitch didn’t jeopardize the plan that had been laid almost six years earlier with Tseytlin at the Mayflower Hotel.

The A.D.F. lawyers rode the old mirrored elevators of the Walter Sillers State Office Building in Jackson to the 12th floor for a private meeting with Fitch and Stewart. This could be the case of a generation, and A.D.F. wasn’t about to cede control.

A.D.F.’s incoming president, Kristen Waggoner, brought a core team of top-notch attorneys and media experts, including a new lawyer A.D.F. had hired: Erin Hawley, a graduate of Yale Law School. She was married to Senator Josh Hawley of Missouri. Overturning Roe was a joint mission for the Hawleys, who met as clerks for Chief Justice Roberts.

Squeezed around a long table, A.D.F. lawyers lined up on one side and the Mississippi team on the other. This private meeting, one kept secret from the press, top politicians and even other allies in the anti-abortion coalition, would signify a pivotal turning point in the strategy of their movement. This account of the meeting is based on interviews with multiple participants and people familiar with the discussion.

The A.D.F. lawyers outlined their thinking. Priority No. 1, they argued, was to get the Supreme Court to remove the viability line established in Roe as the limit for when states could ban abortion. Removing that limit — about 24 weeks — would open the door to all kinds of restrictions being upheld by lower courts. It would be a huge victory for their cause. It was a backdoor way of gutting Roe, invalidating the central principle of the original decision, without requiring the justices to take the thornier step of overturning 50 years of precedent.

Stewart disagreed. The lawmakers of Mississippi had enacted a law, and that law was fundamentally incompatible with Roe, he argued. “The people of Mississippi are pro-life,” he told the room, according to Erin Hawley. “They enacted this law. It is my duty to defend it to the best of my ability, and the right thing to do is to ask the court to overrule Roe.” The only effective strategy, Stewart said, according to participants, was to target the very heart of it all: the right to abortion that the court had found via a right to privacy that it decided was protected by the due-process clause of the 14th Amendment of the Constitution in 1973. The best argument was that Roe was wrong, he decided.

Some of the A.D.F. lawyers bristled. Stewart’s plan felt risky and aggressive. If the court wanted to use this case to overturn Roe, it could, the A.D.F. team argued. But to ask for that explicitly could be pushing too far too fast, even for this new court. A defeat would be devastating, potentially even going so far as to reaffirm abortion rights in some way and create another precedent to fight.

There was a lot to consider. It wasn’t totally clear that they had five votes to fully overturn Roe right now. Certainly, it was the best court they had faced in a long time. But the 6-3 conservative majority was still new, and the country was still reeling from the contentious Supreme Court battles of the Trump era. And looming over the conversation was the reality that Stewart had never argued a case at the Supreme Court. By this point, A.D.F. lawyers had argued and won 12 Supreme Court cases. The A.D.F. lawyers’ message was clear: The safest path to victory was their plan. They should simply ask the court to uphold their 15-week law.

Fitch’s team was grateful for A.D.F.’s help. But to them, this had the feel of a power grab — a bunch of Washington lawyers coming down to Jackson to take over once there was a chance to make history. This was Fitch’s case. She had chosen Stewart, and Stewart was determined. Mississippi would forge its own path.

“Like everything else, you get four attorneys in a room, you’re going to get 10 opinions,” Kevin Theriot, an A.D.F. lawyer, said later in an interview, adding that he was on the phone for part of the meeting. “It’s not that our original strategy went out the window. It was just that instead of making ‘You should overturn Roe’ the second argument, they made it the first argument.”

Stewart’s thinking reflected the shifts that had overtaken the anti-abortion movement and the conservative legal project during the Trump administration. For four years, they had gone bigger and bolder than what previously felt possible. Courts blocked many of their state abortion bans. But the efforts themselves had further opened the window of possibilities. To overturn Roe, conservatives had to directly ask the court to do so. A.D.F. might have been skittish about making the request, but Fitch and Stewart were not.

While the anti-abortion views of the movement’s leaders still represented a distinct minority of the country, they had built an elite legal and ideological ecosystem of activists, organizations, lawmakers and pro bono lawyers around their cause. Their policy arms churned out legal arguments and medical studies. Their lawyers argued their cases, and their judges ruled on them, all fostered by the bench that Leo built. And their allied lawmakers pushed their agenda in statehouses and Congress. Yet despite their overwhelming success, many on the left continued to underestimate them. It was their greatest strength.

Behind closed doors, Fitch’s team drew up a nine-slide blueprint, marked “Confidential”: a 12-month political and public-relations strategy in the run-up to the expected court decision on Dobbs in June 2022. “Strategy to maximize impact at SCOTUS,” it began. The whole operation was surprisingly low-budget, estimated as up to $231,000, to be paid out of the attorney general’s office and Fitch’s political fund, according to the private document.

When Stewart filed the new brief for Mississippi that July, his argument was a full-scale assault on a precedent that had defined American life for nearly half a century, in plain language. “Roe and Casey are egregiously wrong,” he wrote. “The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition.” That same month, Stewart attended a reunion of Thomas’s law clerks hosted at a West Virginia resort by the justice — before whom he would soon argue his case.

If Stewart won, Roe would fall. At least 13 states already had trigger bans on the books, making them certain to move quickly to ban abortion, with very limited exceptions. And at least a dozen more states were likely to follow quickly with their own restrictions. A victory by Mississippi could make abortion illegal in about half the country.

After Stewart argued the case at the Supreme Court in December 2021, leaders of the anti-abortion movement gathered that evening at the JW Marriott in Washington for an invitation-only dinner banquet sponsored by A.D.F. Everyone from the network seemed to be there, and A.D.F. gave out party favors of small wooden plaques depicting a pregnant woman leaning against a Supreme Court column. The mood was celebratory even though their ultimate victory wouldn’t come for another six months, with the decision in Dobbs v. Jackson that would overturn Roe.

Marjorie Dannenfelser was in the room. As were local activists who pushed abortion bans through their statehouses. Authors of the amicus briefs supporting Stewart’s case. Becky Currie, who believed she had come up with the idea of the 15-week law in Mississippi. Many participants knew only the small part they played, not how the whole fit together. Currie met Stewart briefly that night for the first time. “He couldn’t pick me out of a crowd,” she said.

Onstage, Lynn Fitch, Scott Stewart and Erin Hawley sat proudly as they described how they had gotten to this moment. “First of all, to God be the glory,” Fitch began. “We all prayed, worked so hard for this day. It all came together because everyone here, everyone that’s been involved across our country, we’re believers, and we knew this day would come,” she said. “God selected this case. He was ready. The justices were ready to hear what we were all going to be talking about.”

For those listening, the people around them in that ballroom and all they accomplished represented a vision of the kingdom of God coming on Earth, as Jesus’ prayer taught in the Gospels. Their work offered a vision of what a modern Christian empire looked like. It did not involve violent crusaders or declaring an official state religion. It was not clerics instituting a theocracy. The anti-abortion movement had used the existing system to define the Constitution the way it saw fit. A right was not being taken away from women, the movement argued, because it never should have existed in the first place. Even Ruth Bader Ginsburg had said Roe, rooted in a right to privacy, wasn’t built on the strongest legal ground. An argument explicitly based on a constitutional right to equal protection would have better protected it from challenges, she argued.

A.D.F.’s strategy on Dobbs reflected how it believed it could reshape America and overtake majority opinion. There’s a saying that law is downstream from culture, said Greg Scott, a former longtime communications strategist for A.D.F., explaining the idea in an interview that a cause gains popular support first and then the law formalizes those beliefs. “I actually reject that,” he said. “We are in this feedback loop and this ecosystem where frequently that is true. But then at other times, the law does drive culture.”

And now, amid the applause, A.D.F. leaders looked ahead. Their ultimate goal was sweeping change across America to preserve the values of conservative Christians. A.D.F. was, after all, a “religious ministry,” not just a legal network, as Kristen Waggoner said in an interview. Ending abortion was the first target, but A.D.F. had already begun planning for more.

According to an internal strategy document dated to May 2021, A.D.F. leaders set out to achieve what they called “generational wins,” victories that, like overturning Roe, would change the law and the culture of America for an entire generation. The document, never before reported, reveals secret details of the legal decisions A.D.F. hopes to challenge in the coming years.

A.D.F. lawyers would work to reverse the Supreme Court’s 1990 decision in Employment Division v. Smith, to “fully protect the free exercise of religion,” the strategy document explained. That decision, written by Scalia, ruled that religious beliefs did not excuse disobeying laws.

They would pursue litigation to enforce free-speech rights on college campuses. They would push legislation to protect the freedom of association there as well, to eventually overturn a decision that Ginsburg wrote in Christian Legal Society v. Martinez. The ruling allowed a public university not to recognize a Christian student group that excluded gay students. In his dissent, Alito called the decision a “serious setback for freedom of expression.”

They would target L.G.B.T.Q. rights and protections and “stop efforts to elevate sexual orientation and gender identity to protected-class status in the law akin to race.” They would “work to restore an understanding of marriage, the family and sexuality that reflects God’s creative order.”

And they wanted the court to strengthen parental rights over state authority by having the court revisit the 2000 case Troxel v. Granville, which allowed the state to override a parent’s wishes in some circumstances. A.D.F. would work to pass state legislation, similar to its approach on abortion, that would prioritize parental rights in medical decisions for minors who say they are transgender, to prevent parents from “being coerced into consenting to life-changing, ill-advised surgeries and procedures in the wake of gender dysphoria.”

It was an agenda that would inflame their liberal opponents and that not even everyone in the ballroom knew about. (An A.D.F. official distanced the organization from the specific cases named in the document, saying its legal strategies shift based on precedent and current events.)

In the months after Roe fell, their efforts would reach beyond the outlines of that one document. A.D.F. lawyers would get involved in the two high-profile Supreme Court cases, argued before the justices this spring, that could define post-Roe abortion access for American women; they focused on the legality of medication that is the most common method of abortion and on emergency care for pregnant women who face grave medical complications in states where abortion is banned.

But all that was to come. Onstage that night, Fitch beamed. For so many decades, Roe had seemed indestructible, the backdrop to the lives of three generations of American women and their families. Soon it would be a relic of an earlier time.

“We’ve got tough times ahead, but we’re ready,” Fitch told the audience. “This has been certainly a God thing. We’ve all been called. We’ve all been waiting.” Now, she said, they would not stop. “Everyone in this room, you’re ready.”

Additional research by Cameron Peters.

Source photographs for illustration at top: Getty Images, Associated Press, Reuters.

This article is adapted from “The Fall of Roe: The Rise of a New America,” being published in June by Flatiron Books.

Elizabeth Dias is The Times’s national religion correspondent, covering faith, politics and values. More about Elizabeth Dias

Lisa Lerer is a national political reporter for The Times, based in New York. She has covered American politics for nearly two decades. More about Lisa Lerer

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