The Distracting Debate Over Judicial Review

Summary

---

For the average person, the virtue of one person, one vote is its status as the only system consistent with basic fairness, genuine community, equality of respect, and the equal dignity of the person.162 This would not need to change after even a long series of unattractive electoral results that might have been avoidable under other voting systems.163 In sum, the claim that one should avoid principled, normative theorizing about judicial review as an independent value escapes two possible grounds for suspicion.

See the full content of this document

Extract

---

The Distracting Debate Over Judicial Review

I. INTRODUCTION ................................................................... 47

II. SOME BASIC CASE LAW AND COMMENTARY ON JUDICIAL REVIEW ............................................................... 53

III. SOME FORMS OF JUDICIAL REVIEW AND JUDICIAL SUPREMACY ................................................. 56

IV. THE QUESTION OF JUDICIAL REVIEW AS A DISTRACTION: AN EXAMPLE AND THE BROADER CONTEXT ....................... 62

V. WHY MIGHT JUDICIAL REVIEW INDEPENDENTLY MATTER? ................................................. 69

A. Judicial Review and Judicial Independence ................ 70

B. Judicial Review and Decision on Principle .................. 73

C. Judicial Review, Protection of the Powerless, and Democracy ............................................................ 75

D. Judicial Review and the Value of Settlement ................ 77

VI. ANALOGY BETWEEN JUDICIAL REVIEW, FILIBUSTER, AND ONE PERSON, ONE VOTE ........................ 80

VII. CONCLUSION: HOW JUDICIAL REVIEW COULD FAIL TO INDEPENDENTLY MATTER ..................................... 83

I. INTRODUCTION

Of late, a number of our best legal thinkers have devoted much effort to developing principled theories about judicial review.1 "Theory" here refers to normative, and not merely descripti ve, theories. That is, the reference is to meories of how legal practices should be and not merely to how they are.2 The debate over judicial review includes meories that reject,3 as well as those that endorse,4 or are indifferent or mixed5 in evaluating judicial review. There are also a wide range of possible forms of judicial review, with varying scopes and strengths.6

Despite the prominence of such theories, this article will argue that all such theories are practically misguided. The game they allow people to play is not worth the candle thereby consumed. Briefly put, the rough idea is that once one controls for other relevant variables, the form of judicial review itself, if any, only minimally affects the overall moral value of the constitutional system. Thus, this article will not argue for or against any principled normative theory of judicial review on the merits. Instead, it will argue that the effort devoted to working out principled normative theories of judicial review would be more beneficial if devoted elsewhere. Considerations that can be separated from one's own principled normative theory of judicial review are normally judged ...

See the full content of this document

---