Judicial review and institutional choice.

• Author: Vermeule, Adrian

It's an appropriate time to consider the legacy of judicial review. Only rarely do deeply entrenched doctrines and practices like judicial review become plausible candidates for rethinking. Yet two contradictory trends have restored this basic question to the intellectual agenda. On the one hand, judicial review has gained new vigor in European legal systems, (1) and the Rehnquist Court is currently in an aggressive phase. (2) On the other hand, prominent American jurists such as Mike Klarman, Richard Posner, and Mark Tushnet, and including Jeremy Waldron as an honorary American, have recently questioned judicial review root-and-branch (3)--a significant development given that even ten years ago a thoroughgoing opposition to judicial review was the mark of a crank. Judicial review is making gains abroad while losing a measure of intellectual respectability at home.

Is judicial review desirable? I shall supply a three-part answer to that question. First, normative analysis of judicial review is necessarily a consequentialist exercise in institutional choice. The question we'd like to answer is whether paramount authority to interpret the Constitution should be lodged in the judiciary or in the lawmaking process. (4) Nonconsequentialist commitments, for example a commitment to "democracy," usually prove too abstract to cut between institutional options of this sort. Second, however, institutional-choice questions of this magnitude are excessively information-demanding. The information necessary to make the assessment is unobtainable, or at best excessively costly to obtain; the scale of the questions is too large; the interaction between institutions is too dynamic and complex; and the possibility of unintended consequences from any choice of institutional arrangement is too great.

Third, the combination of the first two points creates the dilemma of institutional choice: we can't assess judicial review without answering questions that we lack the information to answer. The upshot is that, as I've argued elsewhere, institutional choice over questions of this magnitude must inevitably fall back upon a weak repertoire of techniques for practical reasoning under conditions of profound uncertainty. (5) I will apply some of those techniques to the question of judicial review, but they butt up against the region where consequentialism runs out of steam. In that region large-scale institutional reforms like abolishing judicial review require a leap of faith, and I'll conclude with a bit of positive theorizing about what causes us to take such leaps on the infrequent occasions that we do so.

Start by assuming that we can costlessly obtain full information about the determinants of the institutional-choice question. Because we need some fixed starting points from which to reason, I will assume that the only issue at stake is whether Marbury v. Madison (6) should be overruled, leaving in place all other constitutional provisions and doctrines that regulate relations between the judiciary and other branches of government. For expository clarity I'll exclude intermediate institutional forms like Robert Bork's proposal that Congress be empowered to override constitutional decisions by a majority vote of each House. (7) I will assume that the only options under consideration are full judicial supremacy, on the one hand, and political-branch supremacy, on the other. Now this procedure is mildly unrealistic--obviously various doctrines of standing, justiciability, and deference moderate the current regime--but it helps to isolate the relevant considerations.

With full information, the principal determinants of the institutional choice question are the agency costs of judicial review, its moral hazard effects, the optimal rate of legal change, and the transition costs of switching from a Marbury regime to a political-supremacy regime. Each of these considerations, however, implicates a tangle of subsidiary questions, and I hope it will become clear that the information needed for fully specified institutional choice far exceeds our present intellectual resources.

AGENCY COSTS

Hamilton's defense of judicial review in The Federalist No. 78 supposes a simple principal/agent model with multiple agents: the people, as principal, appoint legislative representatives subject to the terms of the agency agreement (the Constitution), and also appoint the judiciary as another agent to enforce the agreement. (8) If the judges were both infallible and perfectly faithful, the Hamilton model would be persuasive; whether it is actually persuasive depends on the relative agency costs of judicial review and legislative action.

Agency costs come in two forms, agent incompetence and agent self-dealing. The competence issue is whether faithful agents suffer informational and cognitive constraints that cause them to make mistakes, defining "mistake" according to the observer's preferred substantive theory of constitutional interpretation. Faithful but fallible judges will issue erroneous rulings of...