How does the principle of judicial review, established in Marbury v. Madison and defended in Federalist No. 78, give the courts the power to check the other branches?
Topic 2.8 The Judicial Branch: explain the principle of judicial review and how it checks the power of other institutions and state governments.
A focused answer to AP US Government Topic 2.8: the structure of the federal judiciary under Article III, the principle of judicial review established in Marbury v. Madison, and the argument of Federalist No. 78 for an independent judiciary.
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What this topic is asking
Topic 2.8 introduces the judicial branch and its defining power: judicial review. The College Board pairs this topic with two required documents, the required case Marbury v. Madison and the foundational document Federalist No. 78. You must explain how an unelected court can check Congress, the president, and the states.
The structure of the judiciary
The federal court system has three levels: district (trial) courts, circuit courts of appeals, and the Supreme Court at the top. Independence, through life tenure and protected pay, is what lets judges rule against powerful elected officials.
Judicial review and Marbury v. Madison
Federalist No. 78 and the case for an independent judiciary
Why this matters for the exam
Topic 2.8 is densely tested because it contains a required case (Marbury) and a required document (Federalist No. 78), both prime material for the SCOTUS Comparison FRQ and Argument Essays on judicial power.
Try this
Q1. Name the case that established judicial review. [Recall]
- Cue. Marbury v. Madison (1803).
Q2. Explain why Federalist No. 78 calls the judiciary the least dangerous branch. [Short explanation]
- Cue. The courts control neither the purse nor the sword, so they have judgement but no power to enforce their rulings on their own.
Exam-style practice questions
Practice questions written in the style of College Board exam questions on this dot point, with worked answer explainers. The year tag is the paper they imitate, not the source.
AP 2019 (style)4 marksMarbury v. Madison (1803) is a required Supreme Court case. A. Identify the power the Supreme Court established for itself in Marbury v. Madison. B. Explain how Federalist No. 78 anticipated this role for the judiciary. C. Explain how this power allows the Court to check another branch.Show worked answer →
A SCOTUS Comparison or analysis FRQ on a required case (4 points).
A. Identify: judicial review, the power to declare an act of Congress (or the executive) unconstitutional and void.
B. Explain Federalist No. 78: Hamilton argued the judiciary would interpret the law and treat the Constitution as superior to ordinary statutes, the logic behind judicial review.
C. Explain the check: by striking down a law as unconstitutional, the Court limits Congress; by voiding executive actions, it limits the president.
Markers reward correctly stating that Marbury established judicial review and tying it to Federalist No. 78.
AP 2021 (style)6 marksDevelop an argument about whether judicial review makes the courts too powerful relative to the elected branches. Use at least one piece of evidence from one of the following: the Constitution of the United States or Federalist No. 78. Provide a defensible thesis, evidence and reasoning, and a response to an opposing perspective.Show worked answer →
An Argument Essay FRQ, 6-point rubric.
Thesis (1): e.g. "Judicial review does not make the courts too powerful, because the judiciary depends on the other branches to enforce its rulings and can be checked by appointments and amendments."
Evidence (up to 3): Article III's judicial power; Federalist No. 78 calling the judiciary the "least dangerous" branch; the appointment and confirmation process.
Reasoning (1): explain how the Court's lack of enforcement power limits it.
Alternative perspective (1): concede that striking down laws overrides elected majorities, then argue the courts remain dependent and checkable.
Related dot points
- Topic 2.9 Legitimacy of the Judicial Branch: explain how the exercise of judicial review in conjunction with life tenure can lead to debate about the legitimacy of the Supreme Court's power.
A focused answer to AP US Government Topic 2.9: how precedent (stare decisis), life tenure, judicial independence, and public trust sustain the legitimacy of the Supreme Court, and the debate over the legitimacy of judicial review.
- Topic 2.10 The Court in Action: explain how the exercise of judicial review can affect policymaking, and how judicial activism and restraint shape that role.
A focused answer to AP US Government Topic 2.10: how the Supreme Court shapes policy through its decisions, the difference between judicial activism and judicial restraint, the role of precedent and stare decisis, and how landmark rulings change policy.
- Topic 2.11 Checks on the Judicial Branch: explain how other branches in the government can limit the Supreme Court's power.
A focused answer to AP US Government Topic 2.11: how Congress, the president, and the states check the Supreme Court through appointments, jurisdiction, constitutional amendments, legislation, and non-enforcement, despite judicial independence.
- Topic 1.8 Constitutional Interpretations of Federalism: explain how the appropriate balance of power between national and state governments has been interpreted differently over time.
A focused answer to AP US Government Topic 1.8: the commerce, necessary-and-proper, supremacy, and Tenth Amendment clauses, and how McCulloch v. Maryland and United States v. Lopez interpreted the national-state balance, with the SCOTUS Comparison skill.
- Topic 2.5 Checks on the Presidency: explain how the president's agenda can create tension and frequent confrontations with Congress.
A focused answer to AP US Government Topic 2.5: how Congress, the courts, and the Constitution check the president through the override, power of the purse, confirmation, impeachment, and judicial review, and why the president's agenda clashes with Congress.
Sources & how we know this
- AP United States Government and Politics Course and Exam Description — College Board (2020)