Losing Faith: America Without Judicial Review?

In the last decade, it has become increasingly trendy to question whether the Supreme Court and constitutional judicial review really can make a difference. Gerald Rosenberg, for example, in The Hollow Hope, expressly questions whether judicial review achieves effective social change. Similarly, Michael Klarman explores whether the Supreme Court’s desegregation decisions were effective, except insofar as they produced a right-wing backlash that induced action to desegregate. In Taking the Constitution Away from the Courts, Mark Tushnet approvingly invokes these arguments (pp. 137, 145), but he goes much further. Professor Tushnet contends that, on balance, constitutional judicial review is harmful. He maintains that it produces relatively few benefits that could not be gained through the political process and that it actually has serious costs. He contends that without judicial review, a populist constitutional movement, with a vibrant public rhetoric of constitutionalism, would emerge (p. 154). Without constitutional judicial review, he posits, there will be more development of statutory rights and perhaps even a growth in welfare rights (p. 165).