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The Case Against Judicial Review
- HDMI_Cable 3y agoSetting aside the horrible website design... All of the examples the author gives on judicial review being a major, undemocratic problem (Dredd Scott, Plessy, Santa Clara v. Southern Pacific Railroad, even Marbury v. Madison) come at times when Congress and the President are unable to come to a decision themselves due to partisan gridlock and infighting. In times where the government is able to act effectively, the supreme court doesn't institute controversial decisions. The real problem is partisan gridlock—judicial overreach is just a symptom, not a cause of our current problems.
- dragonwriter 3y agoThere is simply no coherent way for any court to apply the law as it exists, given Constitutional supremacy, that doesn’t include judicial review. Whether a purported law is law given the Constitutional limits on lawmaking power is, clearly and unmistakably, both itself a controversy arising under the Constitution and laws of the United States and one on which any controversy about the application of the purported law also depends. Judicial review is not a problem, lack of judicial accountability—arising from structural duopoly, large supermajority requirement for conviction on impeachment, and judicial tenure limited only by impeachment—is the problem.