The Antidemocratic Character of Judicial Review

Abstract

When the Supreme Court declared that institutionalized prayer in a public school violates the establishment clause,' that the failure to apportion either house of a state legislature on a popular basis contravenes the equal protection clause,2 and that the refusal to supply counsel during preindictment custodial questioning violates the self-incrimination clause,3 it placed itself at the center of political controversy. Because the Court has the enormous power of judicial review, it is drawn into what would be wholly political matters in most other countries.4 It is therefore a natural target of groups who find themselves affected by its decisions. In this political role, the Court has been more vulnerable to the onslaught of affected groups than other officials, because its members are appointed for life tenure. This would not be of great concern if the judiciary exercised little or no discretion in arriving at decisions, and the process were as simple as Justice Roberts declared in United States v. Butler:5