CONSTRUCTING JUDICIAL REVIEW

New works by five young political scientists are establishing a new paradigm for studying judicial review. In different ways, Terri Peretti, Ran Hirschl, George Lovell, Kevin McMahon, and Thomas Keck point out that judicial review is established and maintained by elected officials. Adjudication is one of many means that politicians and political movements employ when seeking to make their constitutional visions the law of the land. Elected officials provide vital political foundations for judicial power by creating constitutional courts, vesting those courts with jurisdiction over constitutional questions, staffing those courts with judges prone to exercising judicial power, assisting or initiating litigation aimed at having those courts declare laws unconstitutional, and passing legislation that encourages justices to make public policy in the guise of statutory or constitutional interpretation. Judicial review does not serve to thwart or legitimate popular majorities; rather, it is a practice that alters the balance of power between the numerous political movements that struggle for power in a pluralist democracy.