Justifying Judicial Review: Liberalism and Popular Sovereignty

AuthorJoseph M. Farber
PositionAssociate, Pepper Hamilton LLP, Philadelphia, PA. University of Pennsylvania, B.A., 1993, M.A., 1999, J.D., 1999, Ph.D., 2003
Pages65-100

Page 65

Introduction

The American institution of judicial review1 has often been criticized as anti-democratic. The democratic objection to judicial review is usually that unelected judges have no business invalidating the enactments of popularly-elected representatives.2 That is, since a system of unelected judges is in general a very poor mechanism for enacting the will of the people, judicial review carried out by such judges significantly limits citizens' power to influence political outcomes. However, even when elected judges exercise this power, they may overrule the enactments of representatives elected by popular majorities.3 This is a problem for democracy because when even elected judges overturn these popularPage 66 enactments, they contravene the will of the majority in a way that can only be overridden by the super-majority required for constitutional amendment. Even if the offending judges were voted out of office in the next election, they would have succeeded in subverting, at least in the short-term and perhaps permanently, the will of the majority.4

I argue, however, that judicial review can be justified under liberal democratic views of justice. While I focus primarily on John Rawls's Justice as Fairness,5 I also show how other liberal views (like those of Locke, Rousseau, and Mill) generally can provide the resources to justify judicial review. This is because of the special priority these views assign to certain basic democratic rights and liberties that judicial review might protect. The key to this justification of judicial review is the idea that rights of political participation-which judicial review constrains-are not the only rights basic to democracy. I also discuss, and reject, an important alternative justification of judicial review presented by Bruce Ackerman in his book We The People: Foundations.6 I take Ackerman's view to be "proceduralist," rather than "liberal," in that it justifies judicial review on the grounds that when judges enforce the Constitution, they enforce the popular will of the "People" (who ratified the Constitution). Under the liberal view, judicial review is justified based on the content of the Constitution it enforces, while under the proceduralist view, judicial review is justified based on the procedural fact of the Constitution's ratification. While I defend Rawls's version of the "liberal" view, I note that it requires some modification in order to justify the full scope of judicial review in the United States.

I Democratic Objections to Judicial Review

So far, I have presented what appear to be two separate "democratic" objections to judicial review. The first objection seems to turn entirely on the fact that judges are unelected, while the second seems to turn entirely on the fact that super-majorities are necessary for constitutional amendment. As I will argue, each of these objections represents a particular instance of a more fundamental objection. Under the first objection, judicial review is problematic because democracy requires popular rule and unelected judges are very poor instruments of popular governance. Unelected judges are, no doubt, more likely to invalidatePage 67 legislation as unconstitutional or otherwise interpret the Constitution in ways that would not be popularly endorsed. But all this ignores the existence of a popularly-responsive procedure for constitutional amendment. If the people do not like what the judges have done with the Constitution, the people can always amend the Constitution.

One might object, of course, that successful amendment of the Constitution is no easy matter; it requires a super-majority.7 But this is just to revert to the second objection. The problem is no longer with the fact that judges are unelected, but with whether the super-majority required for constitutional amendment is greater than can be democratically justified. Indeed, if democracy required that the Constitution be interpreted according to the wishes of the (bare) majority, and the Constitution were amendable by (bare) majority vote, it would not matter for democracy if judges were elected or unelected.8 Either way, the people-i.e., the majority-would have the requisite degree of control over legislative outcomes and over the meaning of the Constitution more generally. This degree of control is what ultimately matters, not whether judges are elected or unelected. The election of judges, like the amendment process, is just one institutional mechanism for ensuring that political outcomes- including the meaning of the Constitution-are sufficiently responsive to the popular will. Yet another solution is placing final authority to interpret the Constitution with an elected legislature.9

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The American system of judicial review, however, employs none of these mechanisms. Federal judges, who have ultimate authority over the meaning of the United States Constitution, are unelected and appointed to life terms. The process of amending the Constitution is daunting, requiring proposal by either two-thirds of each house of Congress or two-thirds of the state legislatures, followed by ratification by three-fourths of the states.10 My question is whether this limitation of citizens' control over important political outcomes can be justified.

II A Liberal Justification of Judicial Review

Following Rawls, I take it as a requirement of a just democratic constitution11 that "all citizens are to have an equal right to take part in, and to determine the outcome of, the constitutional process that establishes the laws with which they are to comply."12 This is Rawls's "principle of [equal] participation."13 For Rawls, this principle requires, among other things, a representative legislature with lawmaking powers; the right of all sane adults to participate in political affairs; elections that are fair, free, and regularly held; and the application of the "one elector, one vote" principle "as far as possible."14 Taken together, this is the kind of control liberal democracy requires.

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Turning to the degree of control, Rawls states that "the main variation in the extent of equal political liberty lies in the degree to which the constitution is majoritarian."15 The most extensive political liberty (i.e., the greatest "degree of control") occurs where all significant political decisions are made through bare majority rule "unimpeded by any constitutional constraints."16 Majoritarianism maximizes political liberty because, among fair decision procedures, it minimizes the chances that any given individual will fail to get her way when a political decision is made.17 Put another way, majoritarianism maximizes the collective control of the people over political outcomes. As Rawls acknowledges, various traditional constitutional arrangements, including a "bicameral legislature, separation of powers mixed with checks and balances, [and] a bill of rights with judicial review," are non-majoritarian and thus "limit the scope of the principle of participation."18 Similarly, for Rousseau, political participation should be effected through majority rule: the "People, submitting to the laws, ought to be their author," and follow the "rule of accepting the decision of the majority."19 For Mill, "the ideal type of a perfect government must be representative."20 Our question is whether judicial review, as a limitation on rights of political participation, is a just institution under these liberal views.21

Under Rawls's view of "justice as fairness," as under other liberal views, judicial review can be justified under certain circumstances as a means to protecting various fundamental political rights. At base, justice as fairness consists of two principles of justice: (1) "Each person has an equal right to a fully adequate scheme of equal basic liberties which isPage 70 compatible with a similar scheme of liberties for all"; and (2) "Social and economic inequalities . . . must be attached to offices and positions open to all under conditions of fair equality of opportunity; and . . . they must be to the greatest benefit of the least advantaged members of society."22 The rights of political participation I have been discussing are among the "equal basic liberties" guaranteed by the first principle of justice. The other basic liberties, for Rawls, are freedom of speech and assembly, liberty of conscience and freedom of thought, freedom of the person, the right to hold personal property, and freedom from arbitrary arrest and seizure.23 Other liberal views supply similar lists of inalienable basic rights that hold special priority over other considerations. For Locke, an individual maintains rights against society "to preserve himself, his liberty and property."24 For Mill, basic liberties include liberty of conscience, freedom of thought and discussion, and "liberty of tastes and pursuits; of framing the plan of our life to suit our own character."25 Judicial review appears problematic, then, because it involves a restriction on the system of equal basic liberties, a restriction that might be incompatible with liberal democratic rights of political participation.

But how are we to decide this issue? As stated, Rawls's first principle of justice is quite abstract and gives little guidance. However, Rawls supplies "priority rules" that help guide the application of his principles of justice.26 Generally, Rawls's "priority rules" aid in settling conflicts both between the two principles and within each principle. In one of these priority rules...

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