In comments, LP and geo requested a post about this subject. My purpose is not to make the case; I’m a poor candidate for such a task as I’m not persuaded. In the current debate between Scott and Paul I’m largely in agreement with Scott. But some commenters in recent judicial review threads have expressed some skepticism that a non-wingnut or progressive case against JR would be made. This isn’t terribly surprising, as this argument is largely absent from popular political discourse, even when, as now, Republican appointees increasingly dominate federal courts.
Nevertheless, the case has been made and made seriously, and has certainly scored some hits. While there may be more, I see three general sources of arguments against JR. It’s also important because taking these ideas seriously helps protect against status quo bias.
1) Legal Theory. A number of well-known legal scholars have made substantial arguments against JR, from what appears to be a vaguely populist-left perspective. This trend includes Larry Kramer’s The People Themselves and Mark Tushnet’s Taking the Constitution Away from the Courts, and a few others I can’t recall at the moment. I’ve never given these books more than a quick skim, and I suspect Scott, Paul, and a few dozen of our regular commenters would be better suited to discuss them, so I’ll simply note their existence and move on.
2) Political Theory. A number of democratic theorists have taken positions that lead them to be suspicious or hostile to the practice of judicial review. One area you see some of this is in some of the more Rousseauian corners of communitarian thought, as part of the more general critique of “rights talk” as the central term in political life. More interestingly, at least to me, are the cases against judicial review made more recently by Jeremy Waldron and Richard Bellamy. Waldron argues that constitutional judicial review violates the equal right to political participation in Law and Disagreement, and presents his positive case for legislative supremacy in The Dignity of Legislation. His arguments about judicial review have been expanded and extended in numerous writings in the last decade, but happily he’s provided a nice summary in his 2006 article, The Core of the Case Against Judicial Review, which is available online to all. Waldron makes his case broadly against judicial review of legislative acts (see below for a discussion of a possible exception) but has no problem with judicial review of the constitutionality of executive actions. Waldron argues that even if there’s broad agreement on rights, the interpretation and implementation of said rights are the stuff of political disagreement, which is the very essence of democratic political life. In order for the equal right to political participation to have meaning, these decisions should not be outsourced to alleged specialists (who, Waldron notes, often resort to majority decision, the same method the rest of us use to settle such disputes). Waldron’s case suffers from a number of problems. One Scott has noted repeatedly, treating judicial review as ‘special’ or ‘deviant’ when there’s a tremendous number of powerful countermajoritarian institutions in democratic societies. Furthermore, he tends to consider judicial review in its flawed reality, but considers legislative decision-making in a sort of theoretical-ideal form that conforms more or less ideally to majority decision procedures. Oddly, though, at the end of The Core of the Case, he concedes that his critics have some serious plausibility in the case of the rights of ‘discrete and insular minorities’. He concludes with some pretty unpersuasive efforts to minimize this admission. Bellamy has a bit more consistent of a case as his argument for democratic constitutionalism rules out both judicial review and a permanent written constitution. Again, although for slightly different reasons than Waldron, I think Bellamy falters when he considers the relationship between his ideal theory (a republican society that exercises popular constitutionalism following norms of non-domination and political equality) and a more non-ideal account. He argues that instead of judicial review we should democratically craft constitutional rules, and we (the people) should have equal political resources in doing so. Once that proviso is attached, it seems we’re in a realm of ideal theory that has little to say to actually existing practice.
3) Comparative Legal Scholarship. While I’m sure there are others, I have in mind Ran Hirschl’s impressive study, Towards Juristocracy. Hirschl examines the recent creation of constitutional judicial review in South Africa, Israel, Canada and New Zealand. Hirschl’s case is that these new constitutional courts are primarily an effort to constitutionalize the political priorities of a declining but still powerful political faction that, in each case, held a set of political positions that represented not liberalism but neoliberalism, constitutionally prohibiting a number of possible measures that might enhance economic justice. Hirschl’s work, then, is actually more about judicial review creation than judicial review per se. I have no problem with his general argument; it’s certainly plausible that there are certain circumstances under which the creation of judicial review would be pretty clearly undemocratic and worth opposing. (His case that this was, in fact, what was at work in these four cases varies considerably). But a number of issues remain—the countries under question were undergoing a general neoliberal shift in the 1980s and 90s. While he convincingly shows that judicial review and the new constitutional courts don’t buck this trend, he doesn’t offer a very compelling case that these courts were an independent factor pressing in this direction. Furthermore, when critics found examples of women, gays and lesbians, and indigenous peoples’ rights being enhanced by judicial review in these cases (McClain and Fleming, Texas Law Review 2005), Hirschl largely conceded the point, but stressed the lack of economic justice provided by courts. At a minimum this certainly complicates the case. And, of course, there’s the issue of case selection: If he had looked at, for example, one of several of the new Constitutional Courts of Eastern Europe, they would have confounded his narrative (see Scheppele’s work on the fascinating story of the Hungarian court in the 90’s—long story short, Parliament was a perennially unpopular joke, the court was overwhelming popular and effectively ran the country for several years. The Chief Justice during the 90’s was recently elected President).
Two points in summation: One thing that I hope should be clear from my rundown here is that I remain unconvinced that the judicial review/democracy relationship is primarily a theoretical question. Like many other questions of institutional design and power diffusion in democratic societies, the answer is likely to be contextual. If you hold to a democratic theory that is substantive and procedural, I think this position is inevitable. Second, I think there’s a much stronger case to simply eliminate the power of constitutional judicial review of legislation than to group it into good and bad categories as Paul wants to do. To be against “creative” or “expansive” or “aggressive” judicial review but in favor of the good kind demands a theory of proper and correct constitutional interpretation, which must then be defended against alternatives, and so on and so on. With respect to, say, privacy, this already happened, and Paul’s preferred interpretation lost (in court and in public opinion). It might yet win again; the “liberty of contract” people won in 1905 and then went on to lose in subsequent decades. As long as Paul supports he some constitutional judicial review, he’s not actually critiquing judicial review, he’s arguing for his own preferred interpretive strategy, just like all the other lawyers. Except he’s very reluctant to actually do this, beyond asserting that these decisions are just transparently nonsensical and/or excessively political. I think that’s what’s got a lot of people confused and a bit irritated—if you’re going to argue about constitutional doctrine, do it, if you’re going to critique the practice of judicial review, do that, but it would be helpful to be clear about which one you’re doing.