I wasn’t going to post this, because of the obnoxious policies of academic publishers that would normally prevent me from providing an open link, but I’ve learned that Cambridge has opened the gate to the June Issue of Perspectives on Politics for the month of July. So for any interested parties, Scott and I have an article that addresses some themes we occasionally address here. (If you are reading this 10 days or more in the future, the link presumably won’t work anymore, but feel free to contact me for a copy of the paper if you want one.) We begin with the increasingly widely acknowledged problems with the “countermajoritarian difficulty” framework for thinking about judicial review in democratic systems. The problems are familiar to many of you: judicial review is rarely particularly countermajoritarian in practice; legislatures fall short of the mark as a majoritarian institution for all manner of relatively predictable reasons, and democracy and majoritarianism aren’t synonyms to begin with.
This critique is correct, but it doesn’t really tell us much about the democratic legitimacy of judicial review, beyond rejecting a particular kind of argument about it. In a paper we really should have cited, Michael Dorf points out that this line of work actually creates an additional set of questions about the legitimacy of judicial review—if it’s just another majoritarian institution, what’s the point? (We reject the most common strategy for answering this question, which roughly takes the form of “We need judicial review to be a bulwark against X, so therefore it’s legitimate.” We reject it because we’re looking for an institutional answer, not a virtue-based one about how judges ideally ought to behave.) Our answer, in a nutshell, is that in focusing on judicial review narrows the frame excessively. Judicial review is an example of a larger phenomenon, namely, a veto point. Veto points are things contemporary democratic systems invariably seem t have, so unless we’re doing a particular kind of ideal theory not well suited for institutional analysis, we can’t simply declare veto points undemocratic and be done with it. So rather than ask “is judicial review democratically legitimate?” we need to take a set back and ask “What makes a veto point more or less democratic, relatively speaking?” The rest of the paper is our first take at playing around with this idea: we propose a not-intended-to-be-exhaustive list of five desiderata for relatively democratic veto points, and give a quick and dirty speculative assessment of judicial review’s relative merit on each count, contrasting it with a few other veto points along the way. Our conclusion: not perfect, but not bad. One idea we play around with that I expect to be controversial is that judicial review may be a more democratic veto point than bicameralism. I’d pretty strongly defend that in the context of the US, given the obvious democratic shortcomings of the senate. A reasonably democratic legislature is a much tougher call.
In addition to its present incarnation, this is also part of an in-progress book manuscript we’ll be workshopping in a few months, so any thoughts, observations, feedback, etc would be welcomed.
[SL] I should probably mention that this paper is something of a sequel to one we published a few years ago laying out our basic argument about the uselessness of the “counter-majoritarian difficulty” framework. If you’re considering perusing both it probably makes sense to start with this one.