US law profs Orin Kerr and Ilya Somin have just (I think) completed a fairly robust debate on the proper judicial role where "the People" have happily opted for voting in Big Government. (With a Bush in the White House and Democrats controlling Congress, this hardly qualifies as a hypothetical scenario.) The dilemma they explored is a particular concern for conservative libertarian jurists - specifically, whether (as conservative supporters of judicical modesty) they should maintain that judges should refrain from substituting their own policy preferences for those which have been democratically expressed (Orin's view), or whether (as libertarians) they should insist that judges always apply a model of legality privileging individual freedom and limited state interference (Ilya's view). These are simplifications of their positions (necessitated by a short blog post), and you can read the debate for yourself here. (Caveat: my link is to Orin's recent post at the time I made this post. By the time you read it, Ilya may have responded.)
For what it's worth, I find Ilya's position more appealing. A meaningful theory of judicial review ought to apply irrespective of the party who calls the shots in the legislature (and, in the US, in the executive). The point is that there is a normative function served by judicial review. And, by the way, this is not a purely libertarian argument. Even if Ilya is incorrect about that function (and, by the way, I do not think he is - judicial review exists in my opinion to constrain legislative and executive power taken at the expense of individual liberties), it still matters not whether the law under review was the product of a democratically expressed popular will. No matter how you see the function of judicial review, a plausible account for it will apply irrespective of the particular partisan source of the law under review.
This is not to say that judges should not be modest in their approach to judicial review in the sense that they ought not to be substituting their own policy preferences for those of the legislature where the legislative policy preference falls short of impeding constitutional rights. Nor, obviously, should they be rewriting constitutions to suit their own policy preferences.
