Judicial Review and Party Politics

It has been suggested that intrusion upon legislative policy by judicial review "is a consequence of that fragmentation of political power which is normal in the United States. No cohesive majority,such as normally exists in Britain, would permit a politically irresponsible judiciary to usurp decision--making [policy] functions, but, for complex social and institutional reasons, there are few issues in the United States on which cohesive majorities exist." When they do exist, as in the recent tidal wave of anti-communism, the Supreme Court is not apt to test its strength against them. Rather it practices a judicious self-restraint. Distinguishing between parliamentary and popular majorities, another commentator finds support in Australian experience for this view of the relation between judicial and political policy-making.

Australian courts have been able to override their national legislature, it is said, because they have had the support of cohesive popular majorities. Conversely, we are told, judicial review does not exist in Britain because there, in contrast to Australia, monolithic legislative majorities reflect solid popular majorities.