James L. Oakes


It is elementary constitutional law that American courts have the power of judicial review. While a case can be made (and is still sometimes made by critics of too much judicial intervention) against the courts' power to review federal actions against the Constitution or state actions contrary to the Federal Constitution or statutes, the principle of judicial review is so well ingrained in the American system that it need not be reargued here. Rather I shall examine the principal arguments counseling caution and restraint in the exercise of the power, even though some of these arguments seem to run against the very existence of the power, rather than its overexercise. I shall also touch upon the forces operating, even where courts recognize the need for restraint, to cast them even further into the vortex that is American government. What has happened is that, rather unwillingly (at least with much reluctance and considerable foot-dragging) the American courts have to a large extent become the crucible in which irresolvable political conflicts are solved, sometimes soon, sometimes long, after the fact.