What if The Public Doesn't Like Limited Government? A Response to Ilya:
A paragraph in Ilya's last comment brings out the real difference between our positions, in a way that he hasn't stated before. Ilya writes:
I want to emphasize that I do not myself believe that the justification of judicial review rests on "legitimacy," as Orin defines it. In my view, it rests on a more general need to enforce a written Constitution against a legislature and executive with very strong tendencies to increase their power beyond justifiable bounds. It rests, also, on my view of the shortcomings of the democratic process; the quality of the latter is often undermined by widespread political ignorance and interest group power. Judges, of course, have their own significant shortcomings. That is why the power of judicial review should, in my view, be limited to negating the actions of other branches of government, thereby leaving greater scope for individual freedom and the private sector. I am much more skeptical of the kind of assertions of judicial power where judges themselves take over and run complex institutions such as prisons and schools, though I recognize that the latter may be justified in extreme cases (notably the Jim Crow-era South).
  Now we're on to something important; this is truly a stark difference between us. As I have stated, my ultimate concern is the legitimacy of political power, independently of my personal policy preferences. I believe, as the Declaration of Independence put it, that "Governments are instituted among Men, deriving their just powers from the consent of the governed." Judges should be modest because it is too easy for them to substitute their will for the will of the people.

  Ilya's ultimate concern is very different. If I understand his position correctly, Ilya's goal is to further libertarian principles by limiting the power of the State. Thus he proposes what appears to be a one-way ratchet, in which the judicial role should depend on which approach furthers limited government. If the public prefers no action, then judges should be modest and generally (but not always) defer to that judgment. On the other hand, if one of the elected branches acts, then judges should feel emboldened to block that action. The end result is a theory of the judicial role designed to minimize government, "thereby leaving greater scope for individual freedom and the private sector."

  Here's the problem: What if The People want big government? That is, what if we fail to persuade the citizenry that limited government is desirable, and instead they decide that they really want government to be big and active? If I understand Ilya's approach, he believes that judges should try to force libertarianism upon them. Such an approach would be a good thing, because, well, I suppose because libertarianism is a good thing. If voters do not realize that, it is only because they are ignorant.

  I'm concerned that I may misunderstand Ilya's position, so I will be delighted to post a correction immediately if I am mistaken. But if I'm right about Ilya's view, it does strike me as simply politics by other means.