Politics and Judgment

Two hundred years after its most famous invocation in Marbury v. Madison, judicial review has apparently lost its luster. Despite its global spread, it is in disrepute in its country of origin. The mainstream American academic attitude toward judicial review as practiced by the modem Supreme Court ranges from open hostility to a position similar to Winston Churchill's on democracy: It is the worst way to implement a Constitution, except for all the rest. In this essay, I want to explain the source of the hostility, defend judicial review against its critics, and make a few suggestions for improvement.