lah ea Vales
JEREMY WALDRON
The Core of the Case Against Judicial Review
RAGE pe as gaint joc review felon deacy
‘unchteed by dicston of prticular decisions othe histor fits
cenesgene in particular sperms of consutonal lev, The Essay crc ical review on two
‘main grounds. Birt it erges that there isi eon to suppooe tat ight are beter protected
by this practice than they would be by democrat legiatues. Second, itagues that, quite apart
‘from the ontromes it generatts, judicial review is demiocratically legitimate, The second
axgumentis familia, the firs argent es so.
loweve, the case az judicial review sno absolute or unconditional Inthe Esa, iti
premised on « numberof conditions, including thatthe society in question has good working”
4 democratic instutions and hat most oft citizens take sights seionl (even ifthey may
Alisagree about what rights they hare). The Fssey ends by coeidering what follows from the
failure of these conditions,
AUTHOR, University Profesor the School of Law, Columbia Univesity, (rom jl
2006, Professor of Law, New York University.) Barlir versions ofthis Essay were presented at
the Colloquium in Legal and Socal Pilsophy at University College London at law falty
‘watighop a the Hebrew Univer of erutalem, and at contntonal law confeteace at
“Harvard Law School. am partially gratefl to Ronald Dwrkin, Ruth Gevsoo, and Seane
Shin for ther formal comments on those oecasions and also to Jams Alan, Aharon Barak,
‘Richard Bellamy, Ailoen Cavaagé, Arthuz Chaskilson, Michael Dorf, Richard Fllon, Chavler
ie ried, Andrew Geddi, Stephen Guest, Ian Haney-Lopez, Alon Harel, David Hcy, Sam
Jsvacharaf,Hlena Kegan, Kennéth Keith, Michael Klarman, John Manning, Andrei Marmor,
Frank Michelman Henry Monaghan, Veonigue Manoe-Dardé, John More, Matthew Pele,
‘Richard Piles, Joseph Rax, Carol Sanger, David Wiggins, and Jo Wolf fr their suggestions
and etcioms, Hondres of others hav argued wich me abot this ise over the yas: This
Essay is dedicared to all of them, collegially and with thanks.
1 4%ESSAY CONTENTS:
Ireopuction
1. DEFINITION OF JUDICIAL REVIEW
Il, FOUR ASSUMPTIONS.
A. Democratic Instittions
B, Judicial Instturions
C.ACommitment to Rights
D, Disagreement About Rights
I THE FORM OF THE ARGUMENT
IV, OUTCOME-RELATED REASONS
A. Orientation to Prticulir Cases
B. Orientation o the Text of Bil of Rights
, Stating Reasons
V, PROCESS-RELATED REASONS
VI. THE TYRANNY OF THE MAJORITY
VILLNON-CORE CASES
CONCLUSION
ay‘THE YALE LAW JOURNAL 115:1346 2006
INTRODUCTION
Should judges have the authority to strike down legislation when they are
convinced that it violates individual rights? In many countries. they do. The
best known example is the United States, In November 2003, the Supreme
Judicial Court of Massachusetts ruled that the state’s marriage licensing laws
Violated state constitutional rights t due process and equal protection by
implicitly limiting marriage to a inion between a man and a woman.‘ The
decision heartened many people. who felt that their rights had been
unrecognized and that, as gay men and women, they had betni treated as
second-class citizens under the existing marriage law.* Bven if the decision is
‘eventually overturned by an amendment to the state constitaton, the plaintiffs
and their supporters can fee! that at least the issue of rights is now being
confronted directly. A good decision and a process in which claims of rights are
steadily and seriously consideréd'—for many people’ these are reasons for
cherishing the instvation of judicial review. They acknowledge that judicial
review sometimes leads to bad decisions—such as the striking down of 170
labor statutes by state and federal courts’in the Lochner era'~and they
acknowledge thatthe practice sufers from some sort of democratic deficit. But,
they say, these costs are often exaggerated or mischaracterized. The deniocritic
‘process is hardly perfect and, in any case, the democratic objection is itself
problematic when what is at stake is the tyranny of the majority. We can, they
argue, pat up with an occasional bad outcome as the price ofa practice that has
given us decisions like Lawrence, Roe, and Brown,’ which upheld our society's
commitment to individual rights in the face of prejudiced majorti
‘That is almost the last good thing 1 shall say about judicial review, (1
‘wanted to acknowledge up front the value of many of the decisions it has given
us and the complexity of the procedural issues.) This Essay will argue thit
judicial review of legislation is inappropriate as a mode of final decisionmaking
ina free and democratic society.
1 Goodrge v. Dep't of Pub. Health 798 NE.ad gg (Mass. 2003).
See Landmart Rang: The Vics, BOSTOS HERALD, Nov. 19, 2003 a5.
‘This adapta a phrase of Ronald Dworkin's, from Rowsup DwoRKIN, A MATTER OF
Pamncans 932 (198).
‘4. Locher v. New York, 198 U.S. 45 (1905). The exleuation of the overall munsber of cases in
‘hich sate or feral sattes on abor relations and labor condiions were struck down in
{Se period 1880-1935 is Based on ists given in Wana E, FORSATE, LAW AND TH SHAPING
(FTG AnugCAN Ltt Mov ape. A, C 2177-9, 199-203 (1995)
Lawrence ¥. Teas, s39 U.S. 98 (2003); Roe v. Wade, 410 US. 23 (1973); Brown v. Ba. of
Bec, 347 US. 483 (0954).
“ 2‘THE CORE OF THE CASE AGAINST JUDICIAL REVIEW
Arguments to this effect have been heard before, and aften, They arise
naturally in regard to a practice of this kind. In liberal political theory,
legislative supremacy is often associated with. popular self-government,* and
democratic ideals are bound to stand in an uneasy relation to any practice that
sayo clected legislatures are to operate only on the sufferance of unelected
judges. Alexander Bickel summed up the issue in the well-inown phrase, the
counter-majoritarian difficulty.” We can try to mitigate this difficulty, Bickel
said, by showing that existing legislative proceduies do not perfectly tepresent
the popular or the majority will, But, he continted, ‘
nothing in the further complexities and perplexities of the ‘system,
‘which modem political science has’ explored with ‘admirable and
ingenious industry, and some of which it has tended to multiply with a
fertility that passes the miere zeal of the discoverer—nothing in thése
complexities can-alter the essential reality” that judicial review is-a
deviant instiution in the American democracy.*
Tn countries that do not allow legislation to be invalidated in this way, the
people themselves can decide finally, by ordinary legislative. procedures,
‘whether they want 06 permit abortion, affirmative action, school vouchers, of.
‘gay marriage, They can decide among theinselves. whether to” have Taws
punishing the public expression of racial! hatred. of restricting candidates?
spending in elections. If they disagree about any of these matters, they can elect
representatives to deliberate and settle the issue by voting in the legislarure,
That is what happened, for example, in Britain in the 1960s, when Parliament
debated the liberalization of abortion lav, te legalization’ of homosexual
conduct among consenting adults, and the abolition ‘of capital punishment.”
On each iséue, wide-ranging public deliberation was mirrored in serious debate
in the House of Commons. The quality of those debates (and similar debates in
Canade, Australia; New Zealand; and elsewhere) make nonsense of the claim
that legislators are incapable of addressing such issues responsibly—just as the
‘The locus classins for this concep is fon Locke, Te Second Treat of Government in TWO
‘Tanaris oF Govnacent 265, 366-67 (Petr Lacket ed, Cambridge Uniy, Pres 1988)
(1690).
1} AUBEANDER M, Bicxay, ‘Tas Least Dasvasnous Baavca 16-17 (ad. 1986) CU dicial
review i 4 coumer-majrtaian force in our sytem. . . . [When the Supreme Court
declares unconsitational« legislative act... tthwares the wil of representatives of the
sczual people ofthe here and now. ...").
Matiy,
. Abortion Act, 1967, c. 87; Semal OBiices Act, 1967,c. 60; Munder (Abolition of Death
Penalty) Act, 1965, ¢. 71.
ve‘THE YALE LAW JOURNAL 11:1346 2006
liberal outcomes of those proccedings cast doubt on the familiar proposition
thar popular majorities will not uphold the rights of minorities.
‘By contrat, in the United States the people or their representatives in state
and federal legislasures can address these questions if they ike, but they have
no certainty that their decisions will prevail, Ifsomeone who disagrees withthe
legislative resolution decides to bring the matter before a court, the view that
finally prevails wil be that ofthe judges. As Ronald Dworkin puts t-and he is
a defender of judicial review~on “intractable, controversial, and profound
questions of politcal morality that philosophers, statesmen, and citizens have
debated for many centuries,” the people and their representatives simply have
to “accept the deiverances ofa majority of the justices, whose insight into these
great isenes is not spectacularly special.”
In recent years, a number of books have appeared attacking judicial review
in Ameria." For years, support for the practice has come from liberals and
opposition front gonservative opponents of the rights that liberal cours have
upheld, In recent years, however, we have sen the growth of iberal opposition
to judicial review, as the Rehnquist Court struck down some significant
achievements of liberal legislative policy.” But there have been spirited
defenses of the practice as wel.” The two-hundredth anniversary of Marbury .
Madison elicited numerous discussions of it origins and original legitimacy,
and the fiftieth anniversary of Brown v. Board of Education provided a timely
remindet ofthe sevice thatthe nation's courts performed in the mid-twentieth
century by spearheading the attack on segregation and other racist laws.
So the battle lines are draw, the maneuvering is familiar, and the positions
‘on both sides are well understood. What is the point of this present
eee
a RONAD Dwoncy, PREDOM'S Law: Ta Mona, READING OF THE AMICAN
Costar 74 (1996).
x See, of, LaRee D. Kien, Tee Poors THRASELvES: POPULAR CONSTITUTIONALISY AND
JUDIGAAL Ravasw (2oog); Maxx Tusa, TAKING Tom CONSTITUTION AWAY FROM TER
Counts (1999).
‘a. Su, eg., United States v. Morrison, 529 US: 98 (2000) (etriking down part of the Violence
‘Against Women Act); United States v. Lope, 4 US. 549 (1995) (holding that Congress
‘nas no euthoriyt leila a prohibition onthe possession of guns within a certain distance
‘rom school); se aio Mark Tushnet, Alannisn Versus Modern in Reyonding tothe
‘ekgust Cort, 78 IND. 7 (2008)
‘m Se, eg DWOREIN, rapa note 10; CHRISTOPHER L, ESoRUER, CONSTITUTIONAL SHE
Goversnuner (2001); LAWRENCE G, SAGER, JUSTICE IN PLANGIOTHES: A THEORE OF
Auman CONSTITUTIONAL PRACTICE (3004),
1350 sTHE CORE OF THE CASE AGAINST JUDICIAL REVIEW.
intervention? I have written plenty about this myself already. Why another
article atacking judicial review?
‘What I want to dois identify a core argument against judicial review that is
independent of both its historical manifestations and questions about its
patticalar effects—the decisions (good and bad) that it has yielded, the
heartbreaks and affirmations it has handed down. I want to focus on aspects of
the case against judicial review that stand apart from arguments about the way
judges exercise their powers and the spirit (deferential or activist) in which +
they approach the legislation brought before them for their approval. Recent
books by Mark Tushnet and Larry Kramer entangle a theoretical critique of the
practice with discussions ofits historical origins and their vision of what a less
Jadicialied U.S. Constitution would involve.’ This is not a criticism of |
Tushnet and Kramer, Their books are valuable in large part because of the
ichness and- color they bring~to° the” theoretical controversy.” As “Frak
‘Michelman says in his blurb on the back cover of The People Themselves,
Kramer's history “puts flesh on the bones of debates over judicial review and
‘popular constitntionalism,”"* And so it does, But I want to take off some of the
‘flesh and boil down the normative argument to its bare boines so that we can.
look directly at judicial review and see what it is premised on.
Carles Black once remarked that, in practice, opposition to judicial review
tends to be “a sometimte thing,” with people supporting it for the few cases
they cherish (like Brown or Roe) and opposing it-only when it leads to
‘outcomes they deplore.” In politic, support for judicial review ié sometimes
intensely embroiled in suppoit for paricular decisions. This is most notably
tue in the debate over abortion rights, in which there is a panic-stricken
refusal among pro-choice advocates to even consider the case agunst judicial
review for fear this wil give comfort and encouragement to those who regard
Roe», Wade as an unwarranted intrusion on the tights of conservative
legislators. I hope that setting out the core case against judicial review in
_—_
Me Se og, Janey WALDRON, Lair ax Descasayan 10-17, 21-32 (1999); Jeremy
‘Waldron, Deliberation, Diegresmen, and Voting in Daumaparivs Dagocaacy ax OMAN
‘Rickts 210 (Harold Hongju Koh & Ronald C. Sie ede, 1999) [hereinaier Waldron,
Delbert, Disagreement, end Vang]; Jeremy Weldron, Juel Power and Poder
‘Sovereign, int Manson Vinsus MaDTbON: DocUMans AND COMMENTARY 181 (Mark A.
Graber & Michael Perhac eds, aga) [beeinaier Waldron, Jul Per and Peper
Snercigny;Jeeray Wairoa, A Right-Baed Critique of Conta Rigs, 1g OXFORD J.
Lsaat Sup. 18 (1953) [beeinafer Waldron, A Right-Baed Crue), ‘
See Kaan, sup note 1; TUsNeT, apr ote...
Prank Michelman, Jeckt Comment on KRAQc, pra note,
1 CuanisL.Buacr, Je, A Naw Baers oF Prasou: HUMAN Rucis, NaMap aN Unnanin
199 (997.
6
ae‘THE YALE LAW JOURNAL 11g:1346 2006
abstraction from its particular consequences can help overcome some of this
panic, It may sil be che case that judicial review is necessary as 2 protective
measure against legislative pathologies relating to sex, race, or religion in
particular countries, But even if that is 60, it s worth figuring out whether that
sort of defense goes tothe heart ofthe matter, or whether it shouldbe regarded
instead as an exceptional reason to feftain from following the tendency of
what, in most circomstances, would be a compelling normative argument
against the practice.
‘A connected reason for boiling the flesh off the bones of the theoretical
critique is that judicial review is ani issue for other countries that have a
different history, a different judicial culture, and different experience with
legislative institutions than the United States has had. For example, when the
British debate the relatively limited powers their judges have so review
legislation, they are not paticnlrly interested in what the Republicans sad to
the Federalist in 180s or in the legacy of Brown v. Board of Education. What is
needed is some general understanding, uncontaminated by the cultura,
historical, and politcal preoccupations ofeach sociery.*
‘My own writing on this bas been more abstract chart most. But I have
‘managed to discuss judicial review in a way that einbrols it with other issues in
jurisprudence and political philosophy.”* am not satisfied that Ihave stated in
‘Again, this isnot wo dismiss the more feshed-out accounts, The ica behind this Essay i
that we take a deat view of the cheorescal arunient and put i alongside our scber
understanding ofthe way the debar unfolds in, ro name a fw examples, Brit, the
‘United Stites, Canada, and South Aftica
9 T have asked whether the very idea of individual tights commits us to judicial review in
‘Waldron, A Right-Baed Crisque, supra note 14 1 have considered its relation to eve
republican ideas in Jeremy Walton, Judl Review and Republican Goverment, i THAT
‘Humes THIUNAL: JUDIGAL SuuNACY AND THE ConsTETUTION 159 (Christopher Well
cof democracy in Jeremy Waldron, Rights axl Majors: Rowssau Revisited, in Nowos
[XXKTI: Majonrrss an Minnis 44 (John W. Chapman & Alan Wertheimer eds, 1990)
[hereinafer Waldron, Rights and Majors), and its relation t0 Continental theories of
popular sovereignty in Waldron, judi Per and Prpular Scvereigty, spre note 14. have
considered the relation ofthe judicial review comtrovery to debates in mea-thics about
realism andthe objesiviyof values in Jeremy Waldron, The ielenanc of Meal Obj,
in Navona Law Tuzory 398 (Robert P, George ed, 1952) [berenafer Waldron, The
Irvelvance of Moral Obes]; and Jereny Waldron, Moral Truth and Judicial Review, 43
‘AM J. JOU. 75 (i998) [Dernier Waldron, Mord! Tat and Judicol Review). T ave
responded to various defenses of judicial review, ranging from the precomminment cas, se
Jeremy Waldcon, Prewnmionent nd Disgreanet, in CONSTITUTIONAISM: PHILOSORETOAL
SBounDarions 271 (Larry Alerander ed, 1998) [hercnafier Waldron, Precwmitent rd
Dinmgreeman, tothe particular argument that Ronald Dwockin makes in Freedam’s Law
?THE CORE OF THE CASE AGAINST JUDICIAL REVIEW
a clear and ancluttered way what the basic objection is, nor do I think I have
given satisfactory answers to those who have criticized the arguments T
presented in Law and Disagreement and elsewhere.
In this Essay, 1 shall argue that judicial review is vulnerable to attack on
two fronts. It does not, as is often claimed, provide a way fora society to focus
clearly on the real isoues at stake when citizens disagree about rights; on the
contrary, it distracts them with side-issues about precedent, texts, and
interpretation. And it i politically illegitimate, so far as democratic values are
conoered: By privileging majority voting among a small number of unelected
and unaccountable judges, it disenffanchises ordinary citizens and brushes
aside cherished principles of representation and political equality in the final
resolution of issues about rights,
1 will proceed as follows, In Part 1, I will define the target of my
argument ~strong judicial review of legislacon'~and distinguish it fom other
practices that it is not my intention to attack, Part II will set out some
assumptions on which my argument is predicated: My argument agzinst
jiidicial review is not unconditional but depends on certain institutional and
political features of modern liberal democracies, Then, in Part I, I wil review
the general character of the argument I propose to make. That argument will
attend to- both outcome- and process-related reasons, and these will be
iscussed in Parts IV and V, respectively, In Part VI, I will expose the fallacy of
the most common argument against allowing representative institutions to
prevail: chat such a system inevitably leads to the tyranny of the majority,
Finally, in Part VIL, I shall say a litle bit about non-core cases— that is, cases in
which there is reason to depart from the assumptions on which the core
argument depends.
|. DEFINITION-OF JUDICIAL REVIEW
T begin with a brief account of Wit I mean by judicial review. This is an
‘Essay about judicial review of legislation, not judicial review of enecutive action
or administrative decisionmaking” The question 1 want to address concerns
eee
abouts timate compatily with democracy, Jeremy Waldron, Jul Review andthe
Conditions of Democracy, 6 J, Pot. Pen. 535 (1998).
30, Macti of what is done by the European Court of Human Rights is judicial review of
‘ecutive action. Some of ts judicial review of legislative ation, and same of itis acually
jc eviw of jodi acon. See Seth F. Krier, Eslrng the Dak Mater of Judi
‘Review: A Constatonal Consus f the 19a, § Wht & MARY BIL RES. J 437, 458-59 (1997),
{forthe chim that the majority of constiruional decisions by the United States Supreme
(Court enacem challenges tm the actions of low-level bureaucrats rather than oflegisaares.THE YALE LAW JOURNAL 11521346 2006
primary legislation enacted by the clected legislature of a polity. It might be.
thought that some of the same arguments apply to executive action as well
“After all, che executive has some elective credentials ofits own with which to
‘oppose decisionmaking by judges. Butt is almiost universally acepted thatthe
executive's elective credentials are subject to the principle ofthe rule of law,
and, as a result, that officals may properly be requited by courts to act in
accordance with legal authorization" The equivalent proposition for
legislators has been propounded too: Judicial review is just the subjection of
the legisltuse tothe rule of law, But in the case of the legislature, itis not
ticontested; indeed that is precisely the contestation we are concerned with
here.
‘There are a variety of practices all over the world that could be grouped
under the general heading of judicial review of legislation, They may be
distinguished along’ several dimensions. ‘The most important difference is
between what I shall call strong judicial review and weak judicial review. My
target is strong judicial review.”
Tn a system of strong judicial review, courts have the authority to decline to
apply a statute in a particular case (even though the stamute on its own terms
plainly applies in that case) or to modify the effect of a statute to make its
application conform with individual rights (in ways thatthe statute itself does
not envisage). Moreover, courts in this system have the authority to establish
as a matter of law that a given statute or legislative provision will not be
applied, so that asa result of stare decisis and issue preclusion a law that they
bave refused to apply becomes in effect a dead letter. A form of even stronger
judicial review would empower the courts to actually strike a piece of
legislation out of the statute-book altogether. Some Buropean courts have this
‘a Seana Shiffrin, Richard Pildes, Frank Michelman, and others have urged me to consider
hhow far my argument against judicial review of legislation might also extend to judicial
review of executive action in the light of stanunes enacted Jong ago or statutes. whose
‘provisions require extensive intpretation by the courts, Claaly more needs to be std
‘about this, Purruing the matter in this direction might be considered ether a reductio ad
bara of ry ergument oan atmactve pplication ot
12, The distinction between stroig and wesk judicial review is separate from the question of
{judicial supremacy, Judicial supremacy refers to 2 sitaation in which (1) the courts settle
important issues for the whole politcal system, (2) those settlements are treated as
absolutely binding on all othe actor inthe politcal system, and (3 he cours do nat defer
tw the positions taken on these matters in other branches (sot even tothe extent to which,
they defer to their own past decisions under a limited principle of stare decisis). See Barry
‘Friedman, The Histor of the Countermsjritarian Dificuly, Pat One: The Road to Judicial.
‘Supremacy, 73 NX.U. L. RBv. 33, 352 & 1.63 (1998); Jeremy Waldron, Judicial Power and
Popular Sovereigay, supra note 34, at 191-98.
ws 3THE CORE OF THE CASE AGAINST JUDICIAL REVIEW
authority.” It appears that American couzts do not, but the real effect of their
authority is not much short of ft.”
In a system of weak judicial review, by contrast, courts may scrutinize
legislation for its conformity to individual rights but they may not dedine to
apply it (or moderate its application) simply because rights would otherwise be
violated. Nevertheless, the scrutiny may have some effect. In the United
Kingdom, the courts may review a statute with a view to issuing a “declaration
of incompatibility” in the event that “the court is satisfied that the provision is
incompatible with a Convention right”—i.e, with one of the rights set out in
the European Convention of Human Rights as incorporated into British law
through the Human Rights Act. The Act provides that such declaration “does
not affect the validity, continuing operation or enforcement of the provision in
respect of which itis given; and... is not binding on the partis to the
proceedings in which itis made." But stil it hasan effect: A minister may use
such a declaration as authorization to initiate a fast-track legislative procedure
to remedy the i ibility." (This is a power the minister would not have
but for the process of judicial review that led to the declaration in the first
place.)
2 See Mauro Cappelleti & John Clarke Adams, Comment, judicial Review of Legislation:
European Antecedents and Adaptations, 79 Huns. L. BBV. 1207, 2-23 (ig66), Thee are
farther complications in regard to whether the statute declared invalid is deemed to have
‘hoe invalid as ofthe time ofits passage.
24, The matters not cler-cut. In support of the proposition that unconstimtional taints are
not struck out ofthe stare book, consider Disko s, United Sit, s3 U.S. 48 (2000),
in which the Supreme Court by 2 majority held tha a federal anne (18 US.C. § 3903}
Puporting co make voluntary confessions admissible ever-when thee was no Miranda
‘waning was constitutional. The closing words of Justice Scali’s ditsent in that case seem.
to indica that legislation that the Supreme Court finds unconstitutional remains available
fr juicl reference. Justice Scalia aid: " isent rom today’s decison and, un § 3s is
‘peale, will continue to eppy tin all cases where there has been a sutainable finding that
the defendan’s confession was voluntary.” Id ax 464. A contrary impreston my appear
rom McCorveyv. Hil 385 Fd 846,849 (sth Cir, 2004), in which the Fifth Ciuc hel chat
the Texas abortion stant at issue in Rov, Wade must be deemed to have been repealed by
implication. A close reading of tha case, however, sows that he impli repeal was held to
‘have been effcted by the Teas satus regulating sbortion after Re, not by the decision in
‘Roeitslé (Cam gratfl to Catol Sanger fortis reference.)
% See Richard H. Fallon, Je, Commentary, ArAppliad and Facial Challenges and Third-Party
Standing, 13 Han. L. REY. 321, 139-40 (2000).
M4 _ Ste Surphen Gardbaum, The New Cstomonvealt Model of rntttondion, 49 Au J. Come,
L707 (2001).
sy Human Rights Act, 1998, « 43, §4(2), (6).
& WSi0.THE YALE LAW JOURNAL 11g:1346 2006
‘A form of even weaker judicial review would give judges not even that
such authority, Like cher British counterparts, the New Zealand courts may
not decline to apply legislation when it violates human rights (in New Zealand,
the rights set out in the Bill of Rights Act of 1990"); but they may strain to
find interpretations that avoid the violation” Although courts there have
indicated that they may be prepared on occasion to issue declarations of
incompatibiliry.on theit own initiative, such declarations in New Zealand do
not have any legal effect on the legislative proceés.®
“There are some intermediate cases. In Canada, there is « provision for the
review of legislation by courts, and courts there, like their U.S. counterpart,
‘may define to apply a national or provincial statue if it violates the provisions
of the Canadian Charter of Rights and Freedoms, But Canadian legislation
(provincial or national) may be couched in a form that insulates it from this
serutinj Canadian assemblies may legislate “notwithstanding” the rights in
the Charter In practice, however, the notwithstanding dlause is rarely
invoked Thos, in what follows I shall count the Canadian arrangement as 8
‘ag, New Zesland Bll of Rights Act 1990, 1996 SNZ No, 109, 4 ("No court shall, in relton
to any enactment (whether passed ot made befor or afer the commencement ofthis Bil of
9), [hold any provision ofthe enactment to be impliedly repealed oc revoked, ot
to be in any way inva or inflecve; or... [d]ecinc to apply any provision of the
exuctment by reason only thatthe provision is inconsistat with any provision ofthis Bil
of Right”.
1H, § 6 (Wherever an enactment can be given. 2 meaning that is consistent with the rights
and frebloms contained in this Bil of Rights that meaning thal! be prefered to anyother
ng
sx SeeMoonenv, Fil & Liteatare Bd. of Review, [2000] 2NZLR. 9,22-3(CA),
‘pi Canadian Charter of Rights and Freedoms, Part I of the Conitution Act, 1982, being
Schedule B to the Canada Act x98 ch. 1, §39(3}(2) (UK). The ill text ofthe provision
rads:
3
(Q) Pasiament or the legislate of & province may expresly dodare in an Act of
Pasliment or of the legislature as the case may be, that the Actor a provision thereat
hall operite notwithrtanding a provision indaded in seton 2 or setions 7 to 1s ofthis
(@) An Actor a provision ofan Actin respect of which a declaration made under this
‘ection isin eff hal have such operation ast wonls have but for the provision ofthis
Charter refered to inthe deation,
2 When thas been invoke, i has mosty been in the contet of Québécois politics, Set To
Kahana, The Nowithsanding Mahar ond Publi Dicason: Lesons from the Iperel
‘ratio Sato 33 ofthe Charter 44 J. INST. PUR. ADMIN. CAN. 355 (2008)
a 99‘THE CORE OF THE CASE AGAINST JUDICIAL REVIEW
form of strong judicial review, with its vulnerability to my argument affected
only slightly by the formal availability ofthe override.
A second distinction among types of judicial review pays atention to the
place of individual rights in the constiutional system of a society, In the
United States, starutes are scrutinized for their conformity to individual rights
4s set out in the Constitution. Rights-oriented judicial review is part and parcel
of general constitutional review, and the courts strike down statutes for
Violations of individual rights in exactly the spirit in which they strike down
statutes for violations of federalism or separation of powers principles.® This
gives American defenses of judicial review a peculiar cast. Though
philosophical defenses of the practice are aften couched in terms of the
Jeffrey Goldsworthy has suggested that thé “noowithstanding” provision’ provides 4
sufficient answer t those of us who worry, on democratic grounds, aboot the practice of
strong judicial review. Jfitey Goldsworthy, Judicial Review, Legiatie Oneride, and
Demoeracy, 38 WAKE Fonast L. Rav. 451, 454-59 (3003). It matters not, he says, thar the
provision rarely used. ,
{Surely that isthe electorates democratic prerogative, which Weldron would be
bound to respect It would nat be open to im to object that an ingennous
i to
1388 4 SF
i
{THE CORE OF THE CASE AGAINST JUDICIAL REVIEW
the greatest say posible compatible with an equal say foreach of the
thers. Thats our principle, And we believe that our complicated electoral and
tative arrangements roughly satisfy that demand for political
equalty—thatis, equal oie and equal decisional auhority.
‘Of cours, in the real world, the realization of political equality through
lections representation, and legislative proces is impectect. Electoral systems
are often flawed (eg., by unsatisfactory arrangements for drawing district
boundaries ara lack of proportionality between districts) and so are legislative
procedures (eg, by «system of seniority that compromises fimess in the
legislature). Al this canbe acknowledged. But remember our fis assumption:
a set of legislative insttutions—incuding a system of elections to the
legislature and a system of decisionmaking within it~that ae in reasonably
good shape so far a8 these democratic values of equality and faimess ate
oncernéd. We afe assuming also that the legislators and their constiouents
leep this system under review for its conformity to these principles. For
example, in many democracies there are debams! about rival systems of
proportional representation, districting, and legislative procedure. Ce may
Complain that these systems ate not perfect and that they bave not been
reformed to the extent thar they ought to have been. But a good theory of
legitimacy (for real-world polities) will have a certuin looseness to
inevitable defects. 1c wil tak about reasonable faimess, not
perfect faimess, No doubt some electoral and legislative systems fil even these
generous criteria, But our coe cst is not supposed to address situations in
‘hich the legislative and electoral systems are pathologically or incorigibly
dysfunctional.
Te’s return to out core case and to the confrontation we art imagining
with our recalcitrant citizen C,. That something along the lines described above
can be said in response to C,’s complaint about the decison of a reasonably
swel/-organized legislature is important fr legitimacy, but itis not conclusive.
For C,may envisage a different procedure chat is even more legitimate than the
legislative procedure is, Legitimacy is pardly comparative."® Because different
instintions and processes might yield different results, defending the
legitimacy of a given insittion or process involves showing that it was ot
‘would be fuer than some other institution or process chat was available and
might have reached the contrary decision."
‘So now we imagine—or, in a system like the United States, we observe—
decisions being male not by a legislaace but by a court (e's make it the U.S.
oe
sm See Waldron, supe nate 47.
‘ng, See MICRELAAN, supra note 7, at 57-59.
bs
é
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&THE YALE LAW JOURNAL 115:1346 2006
Supreme Coust) on a vered issue of rights on which the citizens disagree, And
a citizenagain well call her G, who disagrées with the substance of ont of
the court's decsions complains about it. She asks: (3) why should these nine
men and women determine the matter?; and (2) even if they do, why should
they make their decision using the procedure that they use rater than a
procedure that gives more weight to Justices with a view that G favors?
“These are much tougher questions for the Court to answer than they were
for legislators to answer. We have it on good authority that challenges like
these are often voiced noisily outside the Court and that the Justices are
sometimes distressed by them. Some of them, however, reflect on that distress
(Uris time to roll your eyes now and pay no attention for a few minutes,
because Iam going to quote Justice Antonin Scalia and quote him at length.)
In truth, T am as distressed as the Court is .. . about the “political
pressure” directed tothe Court: the marches, che mal the protests aimed
at inducing us to change our opinions. How upsetting it is, chat so many
of our citizens. (good people, not lawless ones, on both sides of this
abortion issue, and on various sides of other issues as well) chink thar we
~ Justices should propery take into account theit views, as though we were
engaged not in ascertaining an objective lw but in determining some
Iku of socal consensus, The Court would profi, I chink, from giving less
attention tothe fac of his distressing phenomenon, and more attention to
the cause of it That cause permeates today’s opinion: a new mode of
constitutional adjudication that relies not upon text and traditional
practice to determine the law, but upon what the Court calls “reasoned
judgment,” which tains out w be nothing but philosophical predilection
and moral intuition.“*
Justice Scalia continued:
“What makes allthis relevant to he bothersoime application of “political
pressure” against the Court are the twin fccs thatthe American people
love democracy and the American people are not fools, As long as this
Const thought (and the people thought) that we Justices were doing
essentially lawyers’ work up here—reading text and discerning our
society's traditional understanding ofthat text -the public pretty much
Jefe us alone. Texts and traditions are facts to study, not convictions to
demonstrate about. But if in reality. our proctss of constitutional
adjudication consists primarily of making value judgments . . then a
v5 Planned Parenthood of Se. Pa v. Casey, sos U.S. 833, 999-1000 (1992) (Seals, J,
disenting) (citation omited),
- 46‘THE CORE OF THE CASE AGAINST JUDICIAL REVIEW
fee and intelligent people's attitude towers us can be experted to be
(ought to be) quite diferent, The people know that their value
judgments are quite as good 2p those taught in any law school—maybe
better If, indeed, the “Hberties” protected by the Constitution aft, a
the Court says, undefined and unbounded, then the people should
demons, to prot that we donot implement her aus instead
of ous.”
So, as Scalia says, the legitimacy questions afe front-and-center, and the
defenders of judicial review have to figure out 2 response.
First, why should these Juties and these Justices alone decide the mater?
One answer might be thatthe Justices have been appointed and approved by
decisionmakers and decisionmaking bodies (the President andthe Senate) who
have. certain elective credentals..The President is elected and people often
Icnow what sort of persons he is likely to appoint to the Supreme Court, and ~~
the U.S, Senators who have to approve the appointments are elected also, and
their views on this sort of thing may be known a8 wel. True the Justioes are
not regularly held accountable in, che way legislators are, but, as we have
already remarked, we are not looking for perfection. . ~
‘So, the defender of judicial review is nt altogether tongue-tied in response
to our dtizen’s challenge; there is something to say. Nevertheless, iflegitimacy
is a comparative manzr, then itis a staggeringy inadequate response. The
system of legislative elections is not perfect ithe, but it is evidently superior as
a matter of democracy and democratic values to the indirect and limited basis
of democratic legitimacy for the judiciary. Legislators ae regularly accountable
to their constituents and they behave as though their electoral credentials were
important in relation to the overall ethos of their participation in political
decisionmaking. None of this is true of Justices.
Second, even ifwe concede that vexed issues of rights should be derided by
theie nine men and women, why shotld they be decided by simple majority
voting among the Justices? Here, the situation gets worse for defenders of
jndicil review, [have alvays been intrigued by the fac that courts make their
decisions by voting, applying the MD principic to their meager numbers. 1
now they produce reasons and everything we discussed above. But in the end
it comes down to head-counting: five votes defeat four in the U.S. Supreme
Court, irespective of the arguments that the Justices have concocted. IF MD is
challenged in this contert, can we respond to it in roughly the same way that
‘we imagined a response on behalf of legislarures? Actually, no, we cannot. MD
6 Id atr000-01.
6 ”
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i” THE YALE LAW JOURNAL . 115:1346 2006
is appropriate for persons who have a motal claim to insist on being regarded
as equals in some decision-process, But I cannot see any moral basis for this
‘daim in the case of Supreme Court Justies. They do not represent anybody.
‘Their claim to participate is functional, not a matte of entitlement.
1am handicapped here by the more or less complete lack of theoretical
attention to the use of MD in courts." Scholais have writen some about our
canpirial expecience of voting and voting strategy on-couts, and some have
suggested novel ways of combining judges’ votes on the particular issoes
involved in each case, rather than on the overall outcome. * But I am not aware
of any elementary defense of judicial majoritarianism."? The usual feimess-
andc-equaity defense is unavailable I suspect that ifthe use of MD by courts
‘were to be defended, i would be defended either asa simple technical device of,
decision with no further ‘theoretical ramifications," or on the basis of
Condorce’s jury theorem (majority ‘voting by.a group of adjudicators
arithmetically enhances the competence of the group beyond the average
coftipétence of its members) Ifitis the late, then the defense of MD is part
of the outcome-related case for judicial competence, which means chat it will
Ihave bo compete with a similar cae that can be made for the much larger
voting bodies in lepislatures* However this argument would play out, my
‘am. try to say alte about it in Waldron, Deltheration, Disagreement, and Voting upme note 4,
aeaisag.
i: Sei, og. Lewis A Korahanse & Lawrence G. Sagi, The Oe andthe Many: Adjudication in
Colgiah Courts, 81 Cat. L. REY. 1 (1993; Lewis A. Korahausez & Lawrence G. Sage,
‘Uspacking the Cort, 96 YALA. 8a (1986); Davi Post Steven, Salop, Rowing Agent
the Tides: A Thy of Voting by Maude Panels, 80 GB0. LJ. 743 (3992)
mp. One reasoh fot this is that defenders of judicial review prefer not to talk about the use of
simple mtijorty voting anong the Justices on issues of rights. They want to be able to
idem majority votig on rights as 2 characters of legislatures, TE pressed, they will
acknowledge that, of court, judges decide issues by, say, 5-4 or 6-3 majorities on the
‘Supreme Cort. Bat Ihave never, ever beard a defender of dial review introduce this into
isassion hinuelf or herelt let lone undertake to explain why it good idea.
too, Se Havas Anais, ON RBVOLOTION 163 (hots. reprint 1962) (1963) (Stang that the
‘ricipleo noisy itherentn the very proces of decision-making” and is "bey to be
‘adopoed almibet automatically inal types of deliberaive councils and asemblis"),
sxx. Manggs i ConDoRca, Esay onthe Applian of Mathes the Tea of Dein
‘Making (178), reprinied in, CoNDORCET: SexacraD WerTmics 33 (Keith Michael Baker ed. &
‘rant, 1976).
sma The Condotoet theorem olds that the larger the voting group, the greater the enhancement
tf group competence abore average individual voter competence by majority voting. Of
‘ure, the result presupposes that average individual competence is higher than fifty
patent. Fa a discussion of Condorcet’s doubts abou che aplication ofthis lr onion,
see Jeremy Waldron, Denweratic Theory and the Public Inert: Cmdoret and Rouse
Revisited, 83 Aud. Pot. SCL REV. 1337, 1322 (1989).
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