judical review and what it means in a democracy

Introduction

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.

English: View of Capitol Hill from the U.S. Suprem...

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"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, parliaments and legislatures are

restrained by constitutional courts (or supreme courts). When elected

majorities make legislation, they must respect the content of fundamental

laws, whose precise meaning...