The Crisis of Judicial Review

Abstract

How much power should the judiciary have in a modern democratic society? Should judges have the authority to strike down legislation? This has long been a subject of controversy in constitutional politics. In the last year or two, the controversy has become acrimonious. In the United States, the overturning of the precedent set in 1973 by the abortion decision of Roe v. Wade has disillusioned many liberals and has led a number of commentators on the left to question the legitimacy of the Supreme Court, at least as currently constituted. In Israel in recent weeks, proposals by the Netanyahu coalition to set up new mechanisms of judicial appointment, and severely curb the power of the Israeli Supreme Court to second-guess policy choices and overturn legislation, has ignited fierce and widespread opposition. Many who in principle oppose judicial review of legislation have been asked whether they would like to rethink their position or limit its application in light of these developments. Professor Waldron is known as an opponent of judicial review, and he will take the opportunity afforded by this lecture to address questions about the legitimacy of Supreme Court decision-making and about what many see as the continued necessity for a judicial veto in a system of checks and balances and the democratic separation of powers.

Keywords: abortion, democracy, Dobbs v. Jackson Women's Health, H.L.A. Hart, Israel, judicial appointments, judicial review, practice theory, stare decisis