Why do critics argue that judicial review can limit democratic decision-making?

Critics argue that judicial review can limit democratic decision-making primarily because it empowers unelected judges to invalidate laws enacted by representatives of the people. This tension arises from several key concerns:12

• Undemocratic Nature: Because judges are typically not elected, their power to strike down legislation is often viewed as being in conflict with the principle of democratic government, where policy decisions should reflect the will of the electorate.3
• Lawmaking vs. Adjudication: Legal theorists often argue that law is frequently indeterminate, meaning judges cannot simply apply existing law but must instead engage in a form of lawmaking. When judges use judicial review to impose their own interpretations or policy preferences, critics contend they are overstepping their appropriate role and undermining the separation of powers.6
• Judicial Activism: The exercise of this power to set aside government acts is sometimes labeled as "judicial activism," a term often used to describe instances where critics believe judges have unjustifiably interfered with the legislative process or ordinary politics.45

Ultimately, these critics question the legitimacy of allowing a judiciary to oversee the government, raising the classic dilemma of quis custodiet ipsos custodes—"who watches the watchers?"6