That's because judicial review is, as constitutional lawyers say, strong medicine. In a country with a fair and open political system, the acts of the sovereign legislature need to be accorded at least a presumption of validity. Whenever a court steps in to void them -- no matter how solid its grounds for doing so -- democratic self-government has received a check. If courts issue these checks too often, or on flimsy grounds, they risk undermining their own legitimacy and that of the political system.

For that reason, in most countries that have judicial review today, it is a power than can be exercised only by a specialized "constitutional court," whose main business is to assess the constitutionality of laws. Germany's Constitutional Court provided the model for this kind of tribunal. It has been copied more often than has our system by which courts of ordinary jurisdiction exercise the power of review.



In Germany, the constitutionality of the Affordable Care Act would probably have been decided by now, permitting the nation to get on about its business. That's because the Constitutional Court has original jurisdiction over all constitutional challenges to legislation. Minority members of the federal legislature, or state governments (like the plaintiffs in the Florida case) can bring an action against a statute as soon as it is enacted, and the court's specialists will deliver an opinion. Individuals who believe their rights have been violated can also petition the court for relief; and a German trial judge is required to stay proceedings in any case where the constitutionality of a statute is brought into doubt. The issue of constitutionality is then referred to the Constitutional Court, which resolves the question, then returns the case to the trial court.

France also has a specialized constitutional court (with the Cartesian fillip that its constitutional court can't hear challenges to executive acts -- separation of powers, Montesquieu and all that, n'est-ce pas? -- which are heard by an executive branch Council of State). In France, minority members of Parliament can obtain a ruling of constitutionality after a new law has been passed but before it can be put into effect.

Brazil's system allows trial judges to hold laws unconstitutional -- but until the country's Supreme Federal Court rules on the law, the lower court's decision binds only the individual parties. In virtually every country I am aware of, the power to invalidate legislation is kept in a few hands, which are at least in theory available to provide timely guidance to citizens and the other branches of government.

Compare our system, in which trial courts may issue conflicting decisions (as has happened with the Affordable Care Act); different Courts of Appeals will evaluate those decisions on different schedules, and the Supreme Court will weigh in when the issue has bounced around below, often for a matter of years. (In fact, the current cases may not even produce that review; there are enough technical issues of standing and jurisdiction to permit the court to dismiss these cases and wait for others, after the law is in effect.)