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Question
While Marbury v. Madison (1803) firmly established the power of federal courts to exert judicial review, John Marshall's ruling did not put an end to controversies surrounding the practice. Among the most interesting of these debates concerns the allegedly antidemocratic nature of judicial review: Why should the Supreme Court (full of unelected officials) be able to strike down laws passed by legislatures (institutions full of elected officials, whose policies presumably represent the wishes of the people)? Or, worse yet, why is the Court able to strike down state initiatives enacted by a majority of voters?These questions took on particular importance during the debate over term limits during the 1990s. Indeed, Justice Thomas's dissent in U.S. Term Limits v. Thornton (1995) poked fun at the antidemocratic nature of the majority opinion: "It is ironic that the Court bases today's decision on the right of the people to "choose whom they please to govern them. . . ." The majority defends [this right] by invalidating a provision that won nearly 60% of the votes cast in a direct election and that carried every congressional district in the State." How might you respond to Justice Thomas?
Answer
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