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
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...