Alternative forms of judicial review.

• Author: Tushnet, Mark V.

The invention in the late twentieth century of what I call weak-form systems of judicial review provides us with the chance to see in a new light some traditional debates within U.S. constitutional law and theory, which are predicated on the fact that the United States has strong-form judicial review. (1) Strong- and weak-form systems operate on the level of constitutional design, in the sense that their characteristics are specified in constitutional documents or in deep-rooted constitutional traditions. After sketching the differences between strong- and weak-form systems, I turn to design features that operate at the next lower level. Here legislatures or courts specify whether their enactments or decisions will receive strong- or weak-form treatment. I examine examples of legislative allocations of issues to strong- and weak-form review and identify some practical and conceptual problems with such allocations. Then I examine judicial allocations--of the courts' own decisions--to strong- or weak-form categories. Here I consider Thayerian judicial review and what Professor Dan Coenen has called semisubstantive doctrines as examples of judicial choices to give their decisions weak-form effects. (2) My conclusion is that these allocation strategies reproduce within strong- and weak-form systems the issues that arise on the level of constitutional design. Weak-form systems and allocation strategies may seem to alleviate some difficulties associated with strong-form systems in constitutional democracies. My analysis suggests that those difficulties may persist even when alternatives to strong-form judicial review are adopted.

1. STRONG- AND WEAK-FORM JUDICIAL REVIEW--SOME DISTINCTIONS

   1. The Basic Distinction

      For perhaps a century the nature of judicial review in the United States was uncertain. Although Marbury v. Madison confirmed that the U.S. Supreme Court had the power to declare unconstitutional a statute enacted by Congress, the scope of the Marbury power, and its relation to the Constitution-interpreting roles of the other branches, remained contested for decades. Marbury can be taken to establish a system of what some scholars call a departmentalist system of judicial review.

      Departmentalism comes in two variants. In the first, each department has sole responsibility for determining the constitutionality of actions by other departments affecting its own operation. (3) Marbury is a departmentalist decision in this sense because the Court determined that Congress had improperly rearranged the Constitution's allocation of power within the judiciary. (4) In the second variant of departmentalism, each branch has a constitutional right--or perhaps even a duty--to act on its own best interpretation of the Constitution, no matter what the other branches have said. (5) Marbury is departmentalist in this sense too, because the Court rejected a reasonable interpretation of the Constitution, adopted by Congress and the president in enacting the Judiciary Act provision invalidated there, in favor of its own interpretation. (6)

      Departmentalism in its first variant was a reasonable description of constitutional practice for much of the nineteenth century. Vigorous constitutional debates about the tariff, the scope of Congress's power to subsidize "internal improvements" such as roads that would link one part of the nation to another, and--of course--slavery took place in Congress and in presidential campaigns. (7) For example, Andrew Jackson vetoed the act rechartering the Bank of the United States, partly because he thought that, the Supreme Court notwithstanding, Congress lacked the power to charter a bank. The veto message stated: "The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both." (8)

      At some point this departmentalist practice weakened substantially. (9) The people of the United States, acting through our institutions, had to define the contours of our system of judicial review because the Constitution says nothing about the institution. Judicial review changed from the means by which the courts expressed their view of the Constitution's meaning, in a system where other institutions expressed their own independent views, to a mechanism for lodging responsibility for constitutional interpretation in a single institution, the judiciary. (10) So, for example, in 1935 Franklin Delano Roosevelt advised a member of Congress to put aside his constitutional doubts and "leav[e] to the courts, in an orderly fashion, the ultimate question of constitutionality." (11) Cooper v. Aaron asserted that the Court's interpretations bind all political actors. (12) And, though an assertion by the Court of its own power cannot make it so, Cooper has been taken to be at most a slightly overstated formulation of the nondepartmentalism that characterizes contemporary judicial review in the United States. (13)

      Strong-form judicial review rejects both forms of departmentalism. In strong-form judicial review, the courts have general authority to determine what the Constitution means. (14) And, more important for present purposes, the courts' constitutional interpretations are authoritative and binding on the other branches, at least in the short to medium run. (15)

      The strong-form aspect of the U.S. system became the model for the constitutional courts adopted by other nations after World War II, even as system-designers rejected other aspects of the U.S. system. (16) For example, the German Constitutional Court, perhaps the world's leading constitutional court after the U.S. Supreme Court, is a strong-form court. (17) And, for many years, it seemed that judicial review meant strong-form review, a fact that provided an argument against the institution for those concerned about giving a substantial policymaking role to (mere) judges. (18)

      The possibilities for institutional design changed, however, when the drafters of Canada's Charter of Rights invented weak-form judicial review in 1981. (19) The Charter's now-famous Section 33 allows the legislature to determine that a statute would go into effect notwithstanding its possible conflict with specified Charter provisions. One point of the notwithstanding clause was to give the Canadian Supreme Court a role in constitutional interpretation without making that Court's judgments completely authoritative in the short run. A legislature that disagreed with the court's interpretation could reenact the legislation found invalid, protecting against a subsequent challenge by invoking Section 33. (20)

      Section 33 appears to have encouraged other system-designers to think creatively about the forms of judicial review. For present purposes I need mention only two, the New Zealand Bill of Rights and the British Human Rights Act of 1998. The former directs the courts to interpret all legislation so as to make the legislation compatible with the Bill of Rights, but gives the courts no power to refrain from enforcing statutes that, fairly read, are inconsistent with the Bill of Rights. (21) The latter couples the interpretive directive with a judicial power to declare a statute incompatible with guaranteed rights and an ensuing ministerial power to modify the statute rapidly, to bring it into compliance with those rights. (22)

      The mark of weak-form review is not that the scope of judicial review is narrow. Courts in weak-form systems have the power to evaluate all legislation to determine whether it is consistent with all of the constitution's provisions without exception. Rather, the mark of weak-form review is that ordinary legislative majorities can displace judicial interpretations of the constitution in the relatively short run. (23) Weak-form review responds to the concern that strong-form review allows courts with an attenuated democratic pedigree to displace decisions taken by bodies with stronger democratic pedigrees. Yet, weak-form systems raise their own concerns--primarily, that weak-form review, to use Marbury's terms, converts the Constitution into an "ordinary legislative act[] ... alterable when the legislature shall please to alter it." (24)

      Strong-form and weak-form judicial review are ways of structuring judicial review. Scholars of constitutional structure have given insufficient attention, I believe, to the question of who selects the form of review. The remainder of this Article addresses that question.

   2. The Level of Institutional Choice

      As presented so far, the choice between strong- and weak-form judicial review seems to occur at the most fundamental level of institutional design. Sometimes the choice is made by the constitution's designers and is memorialized in the constitution; sometimes a nation's legal culture gradually accepts the proposition that judicial review takes a strong or a weak form. (25) But, once we see that there is more than one form of judicial review, we can consider whether strong- and weak-forms can be created at the next level of institutional operation--not by the constitution's designers themselves, but by the legislators and judges who implement the constitution. (26) The idea here is that legislators and judges can allocate particular issues or statutes to strong- or weak-form judicial review, while leaving other issues to a default form of review. (27)

      There are, however, asymmetries in the choices available in strong- and weak-form systems. Legislators in a system of weak-form review on the constitutional level can require courts to exercise strong-form review, thereby relinquishing their own power to revisit the issues they remit to the courts. (28) But, the courts in a weak-form system cannot themselves choose to exercise strong-form review. (29) And, in parallel fashion, courts where the default position established by the constitution is strong-form review can decide for themselves to allow legislatures to "override" the...