Judicial Review and the Right to Resist

Abstract

Judicial review has been a fixture of American government for two hundred years, but our anxiety about it only seems to deepen over time. Recently, two new assaults by leading scholars Larry Kramer and Jeremy Waldron have articulated further political and conceptual criticisms of this practice. That is not necessarily a bad thing, of course; an important role of scholarship is to challenge institutions that that might otherwise be taken for granted. As the Supreme Court, due to recent changes in personnel, begins to adopt positions that many legal scholars find legally or ethically questionable, such challenges to judicial review are likely to seem increasingly attractive.

Keywords: judicial review