Really interesting, and I'll have to think about it. Just curious, how do you feel about school prayer? Because if it weren't for judicial review, we would have school prayer almost everywhere, and there would be almost nothing the minority could do about it. If the Supreme Court shouldn't overturn laws on the basis of their violating the constitution, then what is the Bill of Rights power?

The courts are a check on democracy, acting as a commentary -and more- on the will of the people. Sometimes the people are right, sometimes wrong. If you want to argue that at this point in time it is better for the left to focus on other means, I might agree. It's a sociological discussion: who's in the lead now, the intellectual 'elite' or the masses? But I'd think of it more as a question of strategy than as a permanent position. I value the rule 'of law' as an ideal. That it can cut both ways is the point.

MDtoMN-- Don't get me started on school prayer. I've written a lot in my past on the pathology of the whole 1st Amendment religion jurisprudence. A summary note-- Do you feel the role of religion in public life has diminished since the prayer decisions? Sure, a few words were knocked out of the morning school rituals, but religious-soaked choices still dominate many textbook decisions, encourage home-schoolings explosion, and otherwise infect a politics where our President talks of his relationship with God in a way John F. Kennedy or Eisenhower would never have engaged in.

And Seth, the question is not "the rule of law" or even elites per se, but who decides? The Senate is not "the elite" singular but one group of unelected nine people. They usually reflect one partisan slice of the elite, often after than group has lost power to some other elite. Why should Clarence Thomas, picked for the bench in 1991, still be making decisions possibly in 2031 for people who were not even born when he was appointed. It's just bizarre.

If we want to get rid of religion we should institutionalize a church immediately. It doesn't matter which one. Nothing weakens superstition faster than making it official. But that's not an option for us. Our system was not designed to take hypocrisy into account; that's probably it's biggest flaw.

It's not Thomas' fault he's a justice on the court. The responsibility for that lies with the democrats, who rolled over.

But, yeah, it hurts.

It's good to see this argument being made -- I ran into this idea when my ex-wife was a student of George Anastaplo's. Anastaplo is conservative in a lot of ways, but I always thought his arguments against judicial review were persuasive. (His dismemberment of Marbury v. Madison is great fun.)

There's a reason the constitution puts Congress first, in Article I, then follows with the president and the courts. Anyone who's terrified of giving Tom DeLay such power should ask themselves how much they trust Scalia. At least we can do something about DeLay and his ilk other than wait around for somebody to drop dead.

(1) "What is the role of the courts? To interpret laws passed by Congress, not to overturn them."

You talk as if this was much more straightforward than it is. First of all, laws don't simply provide a blueprint that can always clearly be acted upon - there are internal contradictions within and between the laws that must be sorted out by coming to terms with the underlying principles that these laws appeal to. Secondly, there is a hierarchy between the laws, so some laws (i.e. the constitution) require other laws to be overturned when they violate them. Third, society changes and our interpretations change over time as well. Laws for "equality" in the schools were initially interpreted to mean "seperate but equal" was in compliance with the law, but then changed when it became apparent that this did not guarantee equality at all.

(2) First, the Supreme Court doesn't make its decisions based on "constitutional scholarship", since all members have fine training, yet seem to come to diametrically opposite conclusions on a regular basis-- note the series of 5-4 voting splits in recent years.

You're not serious are you? Are you really arguing that because there are differences of opinion that means that they are not qualified as constitutional scholars!?!? First of all, the splits are often much more complicated than the 5-4 votes make it appear. In fact, some cases result in separate opinions from almost every member of the court. This is proof of their scholarship, not an argument against it. Secondly, you can not reduce their impact simply to the vote itself, but you must understand their decision which is often ... yes ... an *interpretation* of the law. In fact, their disputes help clarify where congressional laws create ambiguity and they clarify what the points of contention are by the very process of disagreement and separate opinons. Sure, they could give the illusion of uniformity, but that would only be an illusion - reasonable people will always disagree about interpretations. That is an argument for the court, not against it - because (once again) the laws require interpretation and are not self-evident in and of themselves.

Please read some books by Ronald Dworkin. He is, I believe, the formost legal scholar in America, and books like "Taking Rights Seriously" are profound defenses of the importance of an independent judiciary.

One-line summary:

Judicial Review helps congress write better laws.

Dworkin is a big defender of judicial review. "Foremost scholar" would be disputed by Richard Posner fans-- and despite my politics, I think on law his pragmatism is far more interesting than Dworkin.

And of course interpreting laws is complex. That's why there is a role for judges, as I noted. But the difference between interpretation and judicial review is that if the democratic branches of government disagree with a bad judicial interpretation, they can change the law to erase the bad judicial interpretation. In the late 1980s, the Rehnquist Court made a series of decisions that interpreted the 1964 Civil Rights Law in ways that weakened it tremendously. COngress then passed the 1991 Civil Rights Act to overturn those court decisions, thereby helping to protect civil rights from the rightwing on the Court.

On Monday, the Court overturned Michigan's affirmative action program. Because that was constitutional judicial review, Congress is powerless to overturn the decision.

I see no reason why an unelected branch of government should have unreviewable dictatorial decision-making over our politics.

It's undemocratic in ways that should be self-evident.

Would you feel the same way if congress had enacted legislation to re-impose Jim Crow rather than reinforce civil rights?

This is the heart of Dworkin's argument. Although it may seem undemocratic to go against majority rule, the real democracy is to preserve the rights of all individuals to participate equally in our democracy - even if the majority wishes to exclude them.

The Supreme Court has upheld that principle in the Michigan Decision. Where I agree with you, perhaps, is that this particular case was too narrowly PROCEDURAL to be the kind of case that should have been up for judicial review. What they decided on was not the principle of equality (a legitimate concern for judicial review in my mind), but the narrow decision about whether or not a point system (such as that used by the undergraduate program) was a legitimate means for achieving this goal.

But this does not, in my mind, invalidate the importance of judicial review.

http://story.news.yahoo.com/news?tmpl=story&cid=536&ncid=536&e=1&u=/ap/20030626/ap_on_go_su_co/scotus_sodomy

Judicial review worked this time. And the mojority of the people in the US, if not the majority in every state, would agree.

The framers of the Constitution and the Bill of Rights envisioned a system where the rights of all citizens were protected from the tyranny of the majority. If Bush and Ashcroft want to shred the Constitution under the aegis of the Congressionally approved Patriot Act, judicial review is the last hope for protecting the rights of all Americans.

Sure the Court has inflicted serious blows to our freedoms, from enslaving Dred Scott to installing George Bush. Fortunately they often correct past damage in time, as when they abolished separate but equal, and reversed themselves by giving homosexuals a little of the same privacy rights that the rest of us take for granted.

But eliminating judicial review leaves us in the same position we are in when the Court abdicates its responsibility to protect all citizens, with no hope that eventually the Court will get it right.

For a worse case scenario, watch "Judgment at Nuremburg", a powerful and thought provoking account of the war crimes trial of the German judges who surrendered independence and abandoned their traditional duty to German citizens from the Nazis.

You wrote: "What is the role of the courts? To interpret laws passed by Congress, not to overturn them."

That's silly. In the context of such interpretation, the Supreme Court has, in effect, overturned laws in the past. How is that not judicial activism while ruling a law unconstitutional is? And if you concede that the former is judicial activism, then why is it that one form of judicial activism is acceptable while another is not?

I concur with Tony. This was a system set up by the founders specifically to prevent the tyranny of the majority. This has been settled case law for, what, 200 years now?

As for your point about being "undemocratic," what makes you think we're a democracy?

It is also not the part of a court to direct the state to ignore its own constitution, to give itself a payraise, or to make law. All of which have occurred recently. We are still a Republic, but for how long? This country has survived because people have had faith in the process. We argue and disagree. We vote. The matter is settled until the next time. More and more it seems to be - We argue and disagree. We vote. Someone sues. Judges decide the correct path to follow and how to follow it. No matter the issue, it seems to be fairly simple to find some constitutional peg to hang it on. When that fails, there is always the penumbra. When people lose faith in this process, they lose faith in our form of government. Now I hear that Ginsburg? wants judges to take international law into account when deciding local affairs. WE need to decide who is to rule, the legislatures or the judges. We need a constitutional amendment to define and check judicial legislation.

In your article that you link to, you suggest that federal judges should be removable by a 2/3 majority of Congress for, I guess, "political" reasons rather than specific maleasance. There is a precedent.
In the 1930s, at least, in Louisiana, there was a procedure known as "addressing from office", that meant any state official (except the governor) could be removed without specific cause from his post on a vote of 2/3 of the legislature.
I guess it was raction to the Reconstruction period, and the low ethical level historically displayed by many public servants in La. I don't know if it was ever used, or even if it applied to judges. I read about it in T Harry Williams biography of Huey Long, incidentally.

On your opinion of the lack of constitutionality and lack of democracy of judicial review, i have a few comments to make:
1.) we elect the officials who put the justices into power and by electing them we assume responsiblity for for their actions
2.) the founders suggested the role of the justices in the clarifying of constitutional conflicts regarding laws in the proposed creation of the Council of Revision by Madison
3.) Who else is to accomplish this task? Congress, I think not. It goes against the law of nations as well as natural law for one to be both party and judge to a case.
4.) the basic idea of the supremacy clause of the constitution which was possibly said by Marshall in Marbury v. Madison, 1803 "...an act of the legislature, repugnant to the constitution, is void."
5.) An impartial and non-political (this is as close as we can get) party is needed to decide these issues and to protect the nation against the harmful factions formed by men. Federalists 10, 51, and 78.

Now I do not attempt to say that the judges are not political, because they are. This explains some of the more henious decisions of the court such as the Scott case. This is not a denied fact, simply look at the attitudinal model. However, judicial review has been responsible for many great decisions which have also gone against public opinion. Look at Brown v. Board of edu. Our government has gone to great lengths to assure that judges are as impartial and nonpolitical as possible. Two of these lengths are illustrated through the life time tenure and lack of election.