The power of courts to strike down legislative acts

At the Volokh Conspiracy Orin Kerr writes, "
There are two basic positions in the American legal tradition about the power of courts to strike down legislative acts. The first position envisions the power of judicial review as an unambiguously positive thing. It is a Constitution we are interpreting, and we should strive to get it right. If that means that statutes must be struck down, then good: It means that the wayward legislature has strayed from fundamental law, and we are lucky that the wise judges can keep the other branches in check. The ideal judge should try to get it right, based on whatever understanding they have of what the Constitution truly means.

The second position envisions the power of judicial review as important but also potentially dangerous. We live in a democracy, and statutes represent majority will. Judges often confuse their view of the constitution and their view of sensible policy, which creates a significant danger that courts will overturn legislatures when they like the results rather than when the constitution truly demands it. Given that legislatures are majoritarian and the judiciary is not, we should be wary of judges using dubious theories to trump the will of the people. The ideal judge should approach judicial review with these institutional concerns in mind, and should rely on established doctrines such as stare decisis and canons of constitutional avoidance."

"How about the present? Right now both conservatives and liberals are divided on these questions. There is disagreement in both camps. Partly that reflects old habits. But partly it reflects the fact that since 2006, the median Justice has been Justice Anthony Kennedy. Justice Kennedy’s views generally are pretty libertarian, His views of the law are to the right of existing precedents in some ways and to the left of them in others. To oversimplify a complex pattern, Justice Kennedy’s positions on the law tend to be to the right of existing precedents in areas like federalism, criminal procedure, and campaign finance, while they tend to be to the left of existing precedents in areas like the Eighth Amendment and gay rights. Justice Kennedy’s position as the median Justice makes this a good time for libertarian constitutionalists. But because the median vote isn’t clearly on one side, we’re seeing a lot of shifting rhetorical positions on the role of the Supreme Court. We’ll probably see this in the next year or two as the Supreme Court takes on gay marriage and revisits affirmative action. Gay marriage will bring out the old alignments; affirmative action will reverse them."
Read more here:  http://www.volokh.com/2012/07/10/will-the-health-care-cases-cause-liberals-and-conservatives-to-switch-positions-on-the-role-of-the-supreme-court/