Why is judicial review controversial even though it is widely accepted in the United States?

Judicial review in the United States is a powerful tool that allows the Supreme Court to declare laws or executive actions unconstitutional. While widely accepted as a cornerstone of the American legal system, it remains controversial for several fundamental reasons:1

• Lack of Explicit Constitutional Basis: Judicial review is not mentioned in the U.S. Constitution; it was established through judicial construction in the landmark case Marbury v. Madison (1803). Critics argue that this power was essentially self-assigned by the judiciary.1
• Tension with Self-Governance: The practice creates the danger of "government by judiciary," which can conflict with democratic ideals of self-governance. When unelected judges overturn laws passed by elected representatives, it raises questions about the legitimacy of their authority.23
• Risk to Institutional Legitimacy: Courts lack the "power of the purse or the sword," relying instead on their perceived impartiality and institutional legitimacy to ensure compliance. When the Supreme Court intervenes in highly sensitive political disputes—such as the 2000 presidential election—it risks being viewed as a partisan actor, which can damage its standing and public trust.3
• Judicial Activism: The court’s history includes decisions that are widely reviled as examples of judicial activism, such as Dred Scott v. Sandford, where judges were seen as imposing their own ideologies rather than interpreting the law.2

Ultimately, the controversy stems from the delicate balance between the court’s role as a guardian of the Constitution and the need to avoid encroaching on the powers of the political branches.13