#4: Is Judicial Review Still Controversial?

Blog Post #4

While most Americans agree that the judicial branch can and should exercise judicial review in limited circumstances, many argue that this power should be circumscribed (either by judicial restraint or by some externally-imposed constraint on the power). There are, however, some contemporary voices who argue that judicial review should be abolished altogether. Mark Tushnet of Harvard Law School has argued that judicial review should be abolished in favor of a more populist approach to constitutional interpretation. Please read the summary of Tushnet’s position from Constitutional Commentary, which I’ve posted to the “Readings Cited in Blog” folder in the course content area of Webcampus. Although opposition to judicial review was confined to conservative circles during and after the Warren Court, liberals are also starting to get in on the act. Here, you’ll see a clip in which a liberal commentator argues for the abolition of judicial review:

 

NOTE: This is from RT (formerly Russia Today). This station has been criticized for being a propaganda machine of the Russian government. If that is true, why might RT put forward liberal (or liberal-sounding) arguments like this in the US?

Paper Topic 4: What is the most compelling argument against the continued practice of judicial review? Is it practical to abandon judicial review? Is it desirable?

Suggested Reading: Tushnet, Mark. 2000. Taking the Constitution Away from the Courts. Princeton University Press. ISBN 978-1400822973

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