The U.S. Supreme Court self-assumed the power of judicial review in the case of Marbury vs. Madison. Judicial review gives the Supreme Court, and the courts more generally, the authority to engage in "negative lawmaking." That is, they can effectively nullify laws by finding them unconstitutional.
Judicial review has usually, and almost universally, been seen as a good thing.
Following are two arguments, for and against, judicial review that may help inform your response to the assignment. Also included are several links to additional resources.
- Democracy is protected by judicial review. The contemporary notion of the liberal democracy is defined not just by majoritarianism, but also by the presence of entrenched liberties enjoyed by the individual and law that is objectively and equally applied (also known as "the rule of law"). Without judicial review, the last two bulwarks of liberal democracy could be swept away by the power of the majority.
- Democracy is undermined by judicial review. Writing in DISSENT Magazine, Mark Tushnet—a constitutional scholar at Harvard—notes that "judicial review stands in the way of self-government." In other words, by allowing the Supreme Court the power of judicial review, the ability of the majority to legislate on any subject and in any manner is restrained.