judical review and its criticisms

Essay by tunetown187University, Bachelor'sA+, May 2002

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There is often a level of tension between judicial review and democracy. Critics of the judicial system believe that the Courts too often invade the domain of legislative politics, deciding instead of reviewing. Paradoxically, in some circumstances the constraints, which Courts represent for legislatures, may actually empower politicians. In particular, when representatives have to deal with highly sensitive and divisive issues, such as abortion, gun control, or crime problems, judicial review may prove to be a useful instrument for conflict management. At its core, the purpose of judicial review is to make sure that policies created to deal with such issues are not contrary to the rule of law.

Numerous studies regarding the separation of powers in American democracy focused on constitutional-level conflicts between Congress and the President, but there has also been a great deal of focus in the past several decades regarding the relationship of the Courts and the administrative state on democracy.

"There is good reason for this shift of emphasis: the erosion of political parties and the emergence of divided government as a regular feature of American politics since 1968 have enhanced the value of the bureaucracy and the judiciary as forums for ordinary policy making" (Clayton 843). The argument has also been presented that judges have used their powers of statutory review to impede the decisions and policy agendas of elected officials. Political and social scientists alternately declare the judiciary or the elected officials to be the victims in the situation. In reality, the democracy to which they are supposedly committed is what is truly victimized.

The Role of Judicial Review

In most democracies of the world, constitutional Courts (or supreme Courts) restrain parliaments and legislatures. When elected majorities make legislation, they must respect the content of fundamental laws, whose precise meaning is fixed...