The American judiciary was designed to be an anti-democratic institution. James Madison called it "an impenetrable bulwark against every assumption of power in the legislative or executive." The idea is that the courts are uniquely situated to protect both individual liberties and unpopular minorities against the tyranny of the majority. Judges do this (if they do it) by striking down democratically-enacted laws.
Not everyone is so keen on the idea of an independent judiciary thwarting the will of the majority, of course. Supreme Court Justice Oliver Wendell Holmes Jr., for example, one of the first great champions of the doctrine of judicial restraint, believed the courts should stay almost entirely out of the legislature's way and let the majority rule. "If my fellow citizens want to go to Hell I will help them," Holmes wrote. "It's my job." To put that more diplomatically, if a citizen doesn't like a given piece of legislation, she should head to the ballot box, not to the courthouse.
As the various legal challenges to the Patient Protection and Affordable Care Act work their way towards the Supreme Court, a handful of modern liberals are paying new attention to Holmes' deferential approach and wondering if there isn't a way to keep ObamaCare out of the courthouse altogether. One of them is Slate legal writer Dahlia Lithwick, who argues in her latest column that "maybe it's time to stop offering the courts the last word on whether a law stands or falls."
Lithwick says she's been tempted to abandon judicial review by the arguments of New York University law professor Jeremy Waldron, who thinks "judges should not be allowed to have the authority to strike down legislation, period." Here's how she summarizes Waldron's siren song:
Allowing judges to have the last word on the constitutionality of gay marriage, abortion, or capital punishment, he wrote, is fundamentally undemocratic. In countries that do not permit judicial review, the citizens themselves are allowed to decide whether such laws are permissible. Judicial review, he wrote, undermines democratic values "by privileging majority voting among a small number of unelected and unaccountable judges."
Let's say that judicial review does "undermine democratic values." Are those the only values that matter? A majority of voters in the Jim Crow South would have supported racially segregated public schools in a 1954 referendum. Does that mean we should criticize the "unelected and unaccountable" justices who handed down Brown v. Board of Education in 1954? What about the unelected justices who overturned an anti-Catholic, Klan-supported Oregon law banning private schools in 1925's Pierce v. Society of Sisters? Both Brown and Pierce could be accurately described as "fundamentally undemocratic" since they violated the wishes of the voting majority. But so what? Democracy can be a wonderful thing, but it also has its limits.