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Instrumental Use of the Courts

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Amber asks “how anyone could have thought this law was going to get upheld,” and compares it to the also-voided Communications Decency Act.     I think the answer can be seen in this article about the inevitable invalidation of the statute by the Supreme Court:

When President Bill Clinton signed the bill, he expressed reservations, prompted by the First Amendment, and instructed the Justice Department to limit prosecutions to “wanton cruelty to animals designed to appeal to a prurient interest in sex.”

It’s very likely, in other words, that Clinton signed the bill assuming — as I’m sure many members of Congress who voted for it also did — that the Court would strike it down. And I think that was even more true of the CDA — in theory, it would be desirable to have a president who vetoes obviously unconstitutional legislation, but when you know the courts will do it for you, why get tarred as a supporter of internet porn for children?

Questions about the democratic legitimacy of judicial review tend to assume a zero-sum struggle between the branches, whether in support (“only a politically insulated branch can protect unpopular minorities!”) or opposition (“nine unelected dictators in black robes!”) to the practice. But as it actually functions, judicial review usually involves some measure of collaboration with powerful forces in national politics, with judicial power being directed against now-defunct legislative coalitions, regional outliers, etc. A more relevant problem with judicial review is that it provides incentives for elected officials to ignore constitutional issues; a less severe problem than the traditional “countermajoritarian difficulty” but a real one nonetheless.

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