The governor of Missouri was named as one of the defendants. He filed a motion to dismiss, which was granted by the Federal District Court, affirmed on appeal to the Circuit Court, and finally affirmed by the United States Supreme Court. I mean, of course, considerations of what is expedient for the community concerned. The above quotation from Justice Holmes is a reflection of reality. But jurisprudential theory carries us to the same position.
Judicial review is thus immediately and doubly suspect.
It is obvious, the critics argue, that if judicial review cuts against the grain of representative democracy, judges should invoke their power to strike down legislative and executive action only sparingly. One school of thought among the critics also holds that, if judicial review is not itself democratic, it should nonetheless link itself to public consent in some way . . . In summary, when judges make their decisions too far from the popular will they become unquestionably anti-democratic and their decisions become impossible to justify. That brings us to the second question. Though judges do not run for office, they cannot help being mindful of public attitudes of the community in which they reside or with which they have close contact.