| > It will not be meaningfully challenged in the court of public opinion, which is completely irrelevant to judicial decisions. Dismissing public opinion because you do not see a direct mechanism to affect change, is a misunderstanding of the inherent social power of Democracy. It is not irrelevant at all. Democracy is about policy being affected by public opinion through representation. A mechanism that doesn't suit an agenda in the short term is not toothless, just less swift than someone who is raging against a perceived injustice. The concepts surrounding judicial review is taught in US high schools consistently. Even in the smallest of schools the hand wavy basics are described as: 1. congress makes laws 2. judicial interprets laws 3. executive enacts laws > I do not agree, and you are not considering that the judges themselves may be making ideological policy decisions as opposed to 'the best public interest'. Let's just dispense with the 'gotcha' retorts. Ofc I consider this. Judges are people and they have values that tend to align with their communities. The pessimistic view that they should all be considered bad actors is at odds with reality, as I know it. > It may interest you to learn that several other developed countries do not have judicial review whatsoever- whatever the legislature passes is the law, full stop. (In Netherlands that's literally in their constitution!) There will always have to be interpretation. Language (be it English or Dutch) is imperfect. Worse, it gets less precise as ideas become referential. The US and Netherlands are never going to use identical legal frameworks. Wishing that things were different has no utility for any possible future. Only the breakup of the US into another set of social contracts will proceed a change of that magnitude. |
I (somewhat incredulously here) can't tell if you really believe that the judiciary only interprets laws, but no, that's wrong. In a country with strong judicial review, like the US or Germany, they can literally strike them down for being unconstitutional. Once that happens, both popular will and the legislature are irrelevant. Your 1st paragraph.... no idea what you're trying to say there.
Just as a quick example, banning flag burning has always been overwhelmingly popular with the electorate, and every single state plus the federal government used to have anti-flag burning laws on the books. The Supreme Court twice struck down such laws, which made the public and Congress enormously angry. And.... popular will is irrelevant. The Court has the final word on this and any other topic that you choose to take up. You could read
https://en.wikipedia.org/wiki/Texas_v._Johnson https://en.wikipedia.org/wiki/United_States_v._Eichman
And in general I think it'd help to read up on https://en.wikipedia.org/wiki/Judicial_activism. But yes, the judiciary essentially makes the law all the time (for example, see qualified immunity- created from whole cloth by the Court), in addition to striking them down as they choose. They hold ultimate power in our system of government. I don't think your general understanding of what judicial review is is correct