By Anna Harvey
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Additional info for A Mere Machine: The Supreme Court, Congress, and American Democracy
72 University of Virginia Professor of Law Saikrishna Prakash has likewise cautioned that “life tenure does not . . make constitutional ﬁdelity more likely. ”73 Constitutional theorist Ronald Dworkin assured us that we should not be troubled by the prospect that unaccountable judges might predate our rights and liberties, for democratically accountable legislatures pose the same danger: “Certainly it impairs democracy when an authoritative court makes the wrong decision about what the democratic conditions require—but not more than it does when a majoritarian legislature makes a wrong constitutional decision that is allowed to stand.
Likewise, while some founding-era political elites appear to have endorsed independent courts, many others appear to have preferred deferential and accountable courts. Moreover, the structure of the Constitution’s provisions regulating the federal courts may make it far easier for the elected branches to induce judicial deference than is commonly believed. There may be more periods of divergence between elected branch and judicial preferences than we have previously suspected. And the most frequently cited evidence in support of the claim that elected ofﬁcials do not seek judicial deference, namely that the elected branches rarely attempt to check the federal courts, is consistent with multiple interpretations.
But in part the apparently negative consequences of judicial review, even as exercised by democratically accountable courts, may stem from the nature of judicial review as an institutional practice. Crudely speaking, the exercise of judicial review generally involves examination of a statute or an executive branch action in order to determine whether that statute or action is, in the opinion of the sitting judges, in conformity with a constitution. If the reviewing judges agree that it is, then the statute or action stands; the status quo is maintained.