Clearly, if you’re a movement progressive, the burden of swaying one lawyer your way is more appealing than that of convincing the electorate that has to live with the decision. But I don’t believe Marbury is what creates that opportunity — not in the main. Marbury asserts that it is the task of the judiciary to say, definitively, what the law is. That, however, is only if there is a case or controversy properly before the court. For the most part, the Constitution leaves up to the political branches to decide what issues are grist for judicial resolution.
Seems to me that the question in a country that is supposedly center-right is: Why are we content to allow all major issues to be decided by unaccountable judges if we have at our disposal the means to take issues out of the judges hands? The only answer I can come up with is that, for all the complaining that our elected representatives do about judicial arrogance, they don’t perceive any benefit to be had in doing something about it. If I’m right, that says more about us than it does about the judges.