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The Use of Judicial Review for Homosexuals

            One of the basic tenets of American democracy is that the majority rules. But, another tenet is that the minority is protected. This is the overlying theme concerning the upcoming Supreme Court case Lawrence and Garner v. Texas, where the Supreme Court may use its power of judicial review to overturn Texas" "Homosexual Conduct" statute. This situation raises many questions about the power of the judiciary, the right to privacy, democracy's role to protect minorities, and the effects of changes in culture on the Supreme Court.
             When the case reaches the Supreme Court, the Court may choose to use judicial review and overturn the case Bowers v. Hardwick where the Supreme Court upheld Georgia's anti-sodomy statue as it applied to a gay man. Judicial review is the power of the court to rend a legislative act null and void on grounds on unconstitutionality (Ranney, 2001)and was granted in the case Marbury v. Madison in 1803. As occurred in Brown v. Board of Education, judicial review may be used as a tool to protect minority groups from laws created by the majority. However, it is a profoundly undemocratic device. Supreme Court Justices are appointed for life and are thus unaccountable to the democratic process. But it is important for democracy to protect the minority from mob rule? Eugene Rostow, in his work "The Democratic Character of Judicial Review" (1952) purports, thus, that it is a defined role of the Supreme Court to ensure that the minority is protected from "tyranny of the minority." Therefore, it seems that the Supreme Court is the perfect venue for this case. .
             Nevertheless, there is concern over ideology of the Supreme Court. Most believe Justices to be impartial and objective, however, there is a marked ideology facet to their decisions, hence when Presidents try to nominate Justices that will increase their legacy. These ideological standpoints were a major point of criticism of Realists in the early 20th century.

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