Monday, October 21, 2013

Judicial Review and Democracy

Legitimacy of Judicial Review

By Jeongkwan Lim
Jeongkwan Lim, an international student from South Korea, is in his third year at Albany Law School. He studied political science and philosophy as an undergraduate and received a masters degree in political science at Sogang University in Korea.  Prior to law school, he worked for a local government institution in Korea as a researcher.  Jeongkwan is interested in international law and philosophical debates about judicial power and the judicial process.
JK's paper was prepared for Prof. Bonventre's Judicial Process Seminar, Fall 2012.

Imagine that there are only three countries: A, B, and C, located on the same continent and not on friendly terms with each other.  Country B, the weakest of the three, is the only country that produces gas.  To strategically exploit this unique advantage, country B has two choices.  One option is for Country B to act as a power balancer, similar to Switzerland.  The other possibility is for Country B to form an alliance with the strongest country, like South Korea with the United States.

Despite these options, however, history proves that Country B’s enemies may try to seize the gas by force. The United States Supreme Court (“the Court”) faces the same situation as Country B.  Judicial review is the only power the Court can use to survive.  Without this power, the Court would lose its authority.

Historically, the Court has used the power of judicial review to act as a balancer or to make an alliance with Congress or the President.  However, anti-court parties upset by the Court’s decisions have continuously tried to deny or destroy the power of judicial review.  One of these attacks refused the legitimacy of judicial review.

This paper explores the sources that might legitimize judicial review:  the Constitution, democracy, and American history. However, none of these areas viewed independently clearly validates judicial review, so to answer the anti-court criticism, it is necessary to review each area.  In the first place, the paper reviews the anti-court parties’ theory.
To read the entire paper, open HERE.