legislatureis unconstitutional and hence void, as in the USA where the
Supreme Court has, over the past 200 years, declared invalid some significant
acts of Congress as well as pronounced unconstitutional certain congressional
procedures, such as thelegislative veto. For example, a large portion of
President Franklin Roosevelt’sNew Deallegislation was ruled unconstitu-
tional by the Supreme Court in an orgy of judicial review, which led it into a
major confrontation with the President. Judicial review was not, however,
written into the Constitution of the USA, but was inferred from its provisions
in a major case of 1803—Marbury v. Madison—in which the Supreme Court
took the view that its own interpretation of the Constitution should take
precedence over other interpretations, including the views of the popularly-
elected legislature.
Judicial review need not always be as dramatic as in the USA. The more
common form of judicial review—which is found in almost all countries
where thejudiciaryenjoys some independence—involves the application by
the judges of their own standards and values, their understanding of the
constitution and their interpretation of the law, to the acts promulgated by
the legislature or committed by the executive. Sometimes this process will
simply produce a pattern of statutory interpretation which was not necessarily
envisaged by the legislature or the executive; sometimes it will result in an
actual conflict between the judiciary and the other elements in the system. It is
therefore a mistake to see the existence of judicial review as being confined to
those countries with written constitutions and countries which recognize the
practice. Rather, judicial review is a feature of any system in which the judges
can control legislative and executive acts by reference to broad constitutional,
political and legal principles.
Judicial review has a highly technical meaning in modern English law,
relating to a mechanism to bring administrative action before the courts; since
the passing of theHuman Rights Act1998 a limited version of American-
style judicial review has also been possible in the United Kingdom.
Judicialization of Politics
Over the last 20 years political scientists have become much more aware of
the importance ofconstitutional courtsin politics. In part this is because
they have objectively become more important in some countries (for example,
in France), in part because there are more of them, (essentially in countries
experiencingdemocratic transition), but also because the study of courts
was neglected for far too long by European political scientists. One conse-
quence of this new attention has been the observation of a phenomenon often
described as the judicialization of politics. This does not refer to the actual
power or actions of the constitutional courts of these countries, so much as to
Judicialization of Politics