Judicial review in the United States in the context of "Strict scrutiny"

The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that turn on questions of U.S. constitutional or federal law. It also has original jurisdiction over a narrow range of cases, specifically "all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party". In 1803, the court asserted itself the power of judicial review, the ability to invalidate a statute for violating a provision of the Constitution. It is also able to strike down presidential directives for violating either the Constitution or statutory law.

Under Article Three of the United States Constitution, the composition and procedures of the Supreme Court were originally established by the 1st Congress through the Judiciary Act of 1789. The court consists of nine justices—the chief justice of the United States and eight associate justices—who meet at the Supreme Court Building in Washington, D.C. Justices have lifetime tenure, meaning they remain on the court until they die, retire, resign, or are impeached and removed from office. When a vacancy occurs, the president, with the advice and consent of the Senate, appoints a new justice.

The Supremacy Clause of the Constitution of the United States (Article VI, Clause 2) establishes that the Constitution, federal laws made pursuant to it, and treaties made under the authority of the United States, constitute the "supreme Law of the Land", and thus take priority over any conflicting state laws. It provides that state courts are bound by, and state constitutions subordinate to, the supreme law. However, federal statutes and treaties must be within the parameters of the Constitution; that is, they must be pursuant to the federal government's enumerated powers, and not violate other constitutional limits on federal power, such as the Bill of Rights—of particular interest is the Tenth Amendment to the United States Constitution, which states that the federal government has only those powers that are delegated to it by the Constitution. It is the responsibility of the United States Supreme Court in that case to exercise the power of judicial review: the ability to invalidate a statute for violating a provision of the Constitution.

The Supremacy Clause is essentially a conflict-of-laws rule specifying that certain federal acts take priority over any state acts that conflict with federal law. Some jurists further argue that the clause also nullifies federal law that is in conflict with the Constitution, although this is disputed. The Supremacy Clause follows Article XIII of the Articles of Confederation, the predecessor of the Constitution, which provided that "Every State shall abide by the determination of the [Congress], on all questions which by this confederation are submitted to them."

In the United States, a state executive order is a directive issued by a governor that regulates operations of the state government and certain aspects of citizen life. Powers of state executive orders are limited by the respective state constitution and/or executive and state law, and are also subject to the provisions of the United States Constitution and any applicable federal law.

Similar to presidential executive orders, they are subject to judicial review and can be invalidated if determined to violate any statutes or codes by which they are governed. The majority of them carry the force of law and remain in effect until revoked, suspended, canceled, proven unlawful, or expire by a date or condition set forth within itself. In 38 of the 50 states, there is no requirement for orders to undergo administrative procedure, which controls how they are formed and enacted. Six states mandate legislative review, and another six have these requirements only for executive orders of a certain type, like those having to do with the creation of agencies.

Schenck v. United States, 249 U.S. 47 (1919), was a landmark decision of the U.S. Supreme Court concerning enforcement of the Espionage Act of 1917 during World War I. A unanimous Supreme Court, in an opinion by Justice Oliver Wendell Holmes Jr., concluded that Charles Schenck and other defendants, who distributed flyers to draft-age men urging resistance to induction, could be convicted of an attempt to obstruct the draft, a criminal offense. The First Amendment did not protect Schenck from prosecution, even though, "in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done." In this case, Holmes said, "the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." Therefore, Schenck could be punished.

The Court followed this reasoning to uphold a series of convictions arising out of prosecutions during wartime, but Holmes began to dissent in the case of Abrams v. United States, insisting that the Court had departed from the standard he had crafted for them and had begun to allow punishment for ideas. In 1969, Schenck was largely overturned by Brandenburg v. Ohio, which limited the scope of speech that the government may ban to that directed to and likely to incite imminent lawless action (e.g. a riot).

Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796), is an early United States Supreme Court case in which the Court held that a yearly tax on carriages did not violate the Article I, Section 2, Clause 3 and Article I, Section 9, Clause 4 requirements for the apportioning of direct taxes. The Court concluded that the carriage tax was not a direct tax, which would require apportionment among the states. The Court noted that a tax on land was an example of a direct tax that was contemplated by the Constitution.

The case is also significant for being the first case by the Supreme Court to rely on judicial review, later formally established by Marbury v. Madison (1803), to decide whether a statute of Congress was unconstitutional.