Call It Democracy

Via Yglesias, I see that Megan McArdle has actually pushed the logic of opposing judicial review because it involves decisions that (at least at the federal level) are made by unelected officials where it leads, arguing against an independent federal reserve. I actually think that this is to McArdle’s credit. As djw said, one of the strange things you encounter when reading a lot of constitutional theory is that the properties that allegedly make judicial review “deviant” are, in fact, utterly banal. I think there’s even a certain superficial attractiveness to the idea of considering decisions made by non-elected state actors “undemocratic”; I always like teaching Scalia’s Mistretta dissent, with its objection to creating a “junior varsity Congress” to make decisions elected officials are unwilling to. But my problem with both McArdle and Scalia’s arguments remains that they’re essentially useless. All modern liberal democracies involve large amounts of delegation to unelected officials, and it’s obvious that this is inevitable. Even smart and well-informed legislators are only going to be able to develop policy expertise with respect to a small percentage of what the state does, let alone have time to make the huge volume of relevant judgments. So if an instance of delegation works well — like the federal reserve — works well, I see no reason to dismantle it in tribute to a vision of “democracy” that never has existed and never will exist, and under any foreseeable set of circumstances probably wouldn’t even be desirable.

Another point to make is that the belief that judicial decisions mean that an issue will therefore be “insulated” from the political process that’s quite mistaken. In the case like the Iowa same-sex marriage decision — where there’s an explicit, not-terribly-cumbersome override mechanism and if the court’s decision is “final” it’s only because a majority of legislators and/or the public want it to be — this is clear. But even at the federal level, Supreme Court decisions can’t “insulate” issues from the political process. With respect to abortion, for example, the questions of which marginal regulations will apply to abortion has now been left almost completely to the political process, and the Supreme Court’s prohibition on total abortion bans stands only because of politics — because a bipartisan, cross-regional majority of senators defeated Robert Bork, largely because of his highly unpopular views about the right to privacy. Courts have real powers, but settling public policy disputes of any consequence or removing them from the political process isn’t one of them.