What are the pros and cons of the Supreme Court's power of judicial review?

Expert Answers
jameadows eNotes educator| Certified Educator

One pro of the Supreme Court's power of judicial review is that this power prevents Congress or the President from passing laws that go against the Constitution. As the Congress and President are elected for specific terms, they might want to pass laws that reflect the passing concerns of the times rather than abiding by the fundamental laws that govern our country for the long term in the Constitution. The Supreme Court justices, who do not serve specific terms, are in the best position to evaluate whether specific laws abide by the principles of the Constitution or not.

One con of the power of judicial review is that it does not always reflect the popular will of the people. Congress and the President are elected by the people, so their laws often reflect the popular will. In contrast, the Supreme Court follows its own interpretation of the Constitution rather than popular will. In addition, if the Supreme Court errs in making a decision, its decision cannot be changed by popular vote; its decision can only be overturned by changing the Constitution. More specifically, this is done by adding an amendment or by following other legal processes that are lengthy in nature. An example is the 18th Amendment, which brought Prohibition into effect. This amendment made the production, sale, and transport of alcohol illegal in 1920 and was only repealed by the 21st Amendment in 1933. 

pohnpei397 eNotes educator| Certified Educator

The major pro regarding the Supreme Court’s power of judicial review is that it acts as a check on the elected branches of government.  Our Constitution set up a system of government with separation of powers and checks and balances.  The reason for this was that the Framers feared that a government with concentrated and unchecked power would be more likely to take away the rights of its citizens.  The power of judicial review is one of these checks and balances.  It helps, we can argue, prevent the elected branches of government from overstepping their bounds and taking away our rights.

There are at least two major cons.  First, we can say that the Supreme Court’s power may make us complacent.  It may make us think our rights are protected by the Court when in fact it is usually efforts on the part of the people (like the Civil Rights Movement) that protect our rights.  Second, we can say that the power of judicial review reduces our democratic control over our government.  If, for example, we want to pass laws against abortion and the Court strikes those laws down, we can say that the Court is taking away our right to have the sorts of laws that we want.

Thus, there are clearly both good and bad sides to the Court’s power of judicial review. 

mkoren eNotes educator| Certified Educator

There are advantages and disadvantages to the Supreme Court’s power of judicial review. The main advantage of judicial review is that it serves a check on the power of Congress. The Founding Fathers wanted to be sure that no person or part of government would become too powerful. They also wanted each branch to be able to control the other branches. Congress must consider how the Supreme Court may view the laws that it passes. This serves as a method to prevent Congress from abusing its power.

A disadvantage of judicial review is that the Supreme Court can abuse its powers by going too far when it declares laws as unconstitutional. It is possible for judges to use their own personal views when determining the legality of a law. Since the decision of the Supreme Court is final, there is no recourse if a judge or several judges were to use their own personal views when making a decision in deciding if a law is constitutional. There may be a significant gap between the letter of the law and the interpretation of the law.