Judicial Review

The debate over the legitimacy of the role of judicial review in the United States constitutional democracy has been around since the creation of the Constitution. The power of judicial review can be considered antidemocratic because it isn’t directly stated in the Constitution, of the authority of unelected judges and the fact that it sometimes resists the majority. Despite these claims, I believe judicial review is a constitutional doctrine, which arose from the historical process of persuasive reasoning in rulings, institutional prestige, the cooperation of political branches, and general public opinion.

It is important to understand the classic debate of Yates v. Hamilton in order to comprehend the context of judicial review in American democracy. Robert Yates was an anti-federalist and judge of the New York Supreme Court who advocated that judicial review was not consistent with the spirit of democratic government. He refused to allow the judicial branch the last word over constitutional interpretation. In his paper, Brutus #11, he contended that the power of the judicial branch would be superior to that of the legislature is the Supreme Court acted as final arbiter of the constitution’s meaning, thus “this power in the judicial, will enable them to mould the government, into almost any shape they please. — The manner in which this may be effected we will hereafter examine” (Yates). Yates, above all, believed that the constitution is the mediator between the public and their elected officials. On the other hand, federalist Alexander Hamilton defended the legitimacy of judicial review as the “least dangerous branch” of government. He explained the legitimate status of the courts through the system of checks and balances. Ham...

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...Judicial appointment eliminates the need for political pressure and allows judges to act as unbiased mediators of political disputes. In contrast, judicial elections would damage the function of state courts to uphold the law, likely be more corrupt than judicial appointment by tainting judicial integrity, and jeopardize procedural impartiality. Thus, judicial appointment is a better alternative where its benefits outweigh the defects.

Judicial review promotes democracy when the political system poses a threat to democratic reform. It can also serve as a supervisor for Congress and the President to make sure they are not overstepping their boundaries. It is an imperfect constitutional institution. And yet, judicial review is not inherently anti-democratic as it is a necessary proceeding for the functioning of the US system of government and democratic society.