Judicial review tells the public that the Constitution is the business of the judges, not the business of the people. Where the Constitution is clear, for example in entitling each state to two senators regardless of population, there is no need for judicial review to determine whether there has been a violation. Where the Constitution is unclear, judicial review is likely to be guided by the political prejudices and the policy preferences of the judges rather than by the Constitution itself. Constitutional law covers a vast domain of policy issues, fr om immigration to education, from poor relief to homosexual rights, from crime to religious liberty. The Justices are rarely well informed about any of them.
Courts also lack the tools needed to effectuate unpopular constitutional rulings.
Courts can create new constitutional rights for criminal defendants, but they cannot muster the will to forbid legislatures to respond by making sentences more severe, or by starving the lawyers for indigent criminal defendants of essential resources, or by curtailing nonconstitutional rights of criminal suspects. For this reason, the institution of judicial review has caused constitutiona l debate and analysis to focus excessively on the agenda of the Supreme Court. All these arguments against judicial review are powerful, but they are not conclusive. Empirical studies by Gerald Rosenberg and others have shown that Americans do not take their ethical cues from the judiciary. More persuasive is the argument that the power of judicial review secures the core of the Constitution against infringement.