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The Power of Judicial Review

The power of judicial review, which allows courts to drop laws that are deemed unconstitutional, has been a fundamental aspect of the United States’ legal system for centuries. However, scholars like David O’Brien argue that this power is anti-democratic because it enables unelected judges to override the will of the people and the elected branches of government (Seelye, 2018). The debate over the democratic implications of judicial review has been ongoing, with supporters arguing that it is necessary to protect individual rights and limit government power. Nevertheless, the power of judicial review remains a controversial and contentious issue in the United States, with some arguing that it undermines the democratic process and the principles of popular sovereignty. This essay explains that the power of judicial review, as seen in Marbury v. Madison or Bush v. Gore, is fundamentally anti-democratic and ultimately requires a balance between a powerful judiciary and democratic accountability (Lemieux, 2017).

The judicial review allows the Supreme Court to strike down unconstitutional laws, which is necessary to ensure that the government acts within its legal limits. However, because the power of judicial review is not subject to democratic accountability, some argue that it is anti-democratic. Since the judges who exercise the power of judicial review are not elected officials, they are not accountable to the people and may not represent the majority’s views (Lemieux, 2017). This means that the power of judicial review can be used to impose the judges’ views on the law rather than reflecting the people’s will. Therefore, while the power is essential to maintain the integrity of the legal system, it is also important to ensure that the power is exercised judiciously and aware of its potential anti-democratic implications.

The 2000 presidential election, Bush v. Gore, was determined by such powers, and it remains a controversial example of the potential anti-democratic implications of judicial review. In that case, the Court effectively decided the outcome of the election, which was still contested in several states. This decision was made by a panel of unelected judges rather than the people themselves. As a result, many have criticized the decision as an overreach of judicial authority and a violation of the principle of popular sovereignty. David O’Brien’s “Storm Center” argues that the power to the decision in Bush v. Gore failed to recognize its authority’s limits and is a stark example of the anti-democratic nature of the power of judicial review (Seelye, 2018).

Federalist No. 78, written by Alexander Hamilton, claims the judiciary would be “the least dangerous branch of government,” because it did not have the authority of the purse and the sword (Hamilton, 1788). Hamilton holds that “the judiciary would be beyond comparison the weakest branch of government” and that it would only have the power to interpret and apply the law. However, Hamilton failed to anticipate judicial review power, which has allowed the judiciary to become a powerful check on the other branches of government. As a result, the Court’s ability to abolish laws and policies that the democratic process has approved has become a significant source of controversy. Some also argue that this power undermines the democratic process, while others maintain that it is essential to protecting individual rights and maintaining the rule of law.

In conclusion, the power of judicial review is an important component of the United States democracy, but it also has anti-democratic implications. The power of judicial review has long been a topic of debate in the United States, as some argue that it is necessary to protect individual rights and limit the power of the government. In contrast, others maintain that it is anti-democratic. Examples such as Marbury v. Madison, Bush v. Gore, and Federalist No. 78 demonstrate the potential implications of the power of judicial review. Ultimately, the issue remains contentious, and it is critical to determine how best to balance the need for a powerful judiciary with the principles of popular sovereignty and democratic accountability. The power of judicial review is a double-edged sword, and society must continue to examine its potential implications to ensure that it is exercised responsibly and democratically.


Hamilton, A. (1788, June 14). The Federalist No. 78. Retrieved February 14, 2023, from

Lemieux, S. (2017). Judicial Supremacy, Judicial Power, and the Finality of Constitutional Rulings. Perspectives on Politics, 15(4), 1067-1081. doi:10.1017/S153759271700216X

Seelye, K. Q. (2018, December 28). David M. O’Brien, who studied Supreme Court politics, dies at 67. The New York Times. Retrieved February 14, 2023, from


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