The core of the case against judicial review.

• Author: Waldron, Jeremy

ESSAY CONTENTS INTRODUCTION I. DEFINITION OF JUDICIAL REVIEW II. FOUR ASSUMPTIONS A. Democratic Institutions B. Judicial Institutions C. A Commitment to Rights D. Disagreement About Rights III. THE FORM OF THE ARGUMENT IV. OUTCOME-RELATED REASONS A. Orientation to Particular Cases B. Orientation to the Text of a Bill of Rights C. Stating Reasons V. PROCESS-RELATED REASONS V. THE TYRANNY OF THE MAJORITY VII. NON-CORE CASES CONCLUSION 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 to due process and equal protection by implicitly limiting marriage to a union between a man and a woman. (1) The decision heartened many people who felt that their rights had been unrecognized and that, as gay men and women, they had been treated as second-class citizens under the existing marriage law. (2) Even if the decision is eventually overturned by an amendment to the state constitution, the plaintiffs and their supporters can feel 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 considered (3)--for many people these are reasons for cherishing the institution 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 (4)--and they acknowledge that the practice suffers from some sort of democratic deficit. But, they say, these costs are often exaggerated or mischaracterized. The democratic 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, put up with an occasional bad outcome as the price of a practice that has given us decisions like Lawrence, Roe, and Brown, (5) which upheld our society's commitment to individual rights in the face of prejudiced majorities.

That is almost the last good thing I shall say about judicial review. (I 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 that judicial review of legislation is inappropriate as a mode of final decisionmaking in a free and democratic society.

Arguments to this effect have been heard before, and often. They arise naturally in regard to a practice of this kind. In liberal political theory, legislative supremacy is often associated with popular self-government, (6) and democratic ideals are bound to stand in an uneasy relation to any practice that says elected legislatures are to operate only on the sufferance of unelected judges. Alexander Bickel summed up the issue in the well-known phrase, "the counter-majoritarian difficulty." (7) We can try to mitigate this difficulty, Bickel said, by showing that existing legislative procedures do not perfectly represent the popular or the majority will. But, he continued,

nothing in the further complexities and perplexities of the system, which modern political science has explored with admirable and ingenious industry, and some of which it has tended to multiply with a fertility that passes the mere zeal of the discoverer--nothing in these complexities can alter the essential reality that judicial review is a deviant institution in the American democracy. (8) In 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 to permit abortion, affirmative action, school vouchers, or gay marriage. They can decide among themselves whether to have laws punishing the public expression of racial hatred or 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 legislature. That is what happened, for example, in Britain in the 1960s, when Parliament debated the liberalization of abortion law, the legalization of homosexual conduct among consenting adults, and the abolition of capital punishment. (9) On each issue, wide-ranging public deliberation was mirrored in serious debate in the House of Commons. The quality of those debates (and similar debates in Canada, Australia, New Zealand, and elsewhere) make nonsense of the claim that legislators are incapable of addressing such issues responsibly-just as the liberal outcomes of those proceedings cast doubt on the familiar proposition that popular majorities will not uphold the rights of minorities.

By contrast, in the United States the people or their representatives in state and federal legislatures can address these questions if they like, but they have no certainty that their decisions will prevail. If someone who disagrees with the legislative resolution decides to bring the matter before a court, the view that finally prevails will be that of the judges. As Ronald Dworkin puts it--and he is a defender of judicial review--on "intractable, controversial, and profound questions of political morality that philosophers, statesmen, and citizens have debated for many centuries," the people and their representatives simply have to "accept the deliverances of a majority of the justices, whose insight into these great issues is not spectacularly special." (10)

In recent years, a number of books have appeared attacking judicial review in America. (11) For years, support for the practice has come from liberals, and opposition from conservative opponents of the rights that liberal courts have upheld. In recent years, however, we have seen the growth of liberal opposition to judicial review, as the Rehnquist Court struck down some significant achievements of liberal legislative policy. (12) But there have been spirited defenses of the practice as well. (13) The two-hundredth anniversary of Marbury v. Madison elicited numerous discussions of its origins and original legitimacy, and the fiftieth anniversary of Brown v. Board of Education provided a timely reminder of the service that the nation's courts performed in the mid-twentieth century by spearheading the attack on segregation and other racist laws.

So the battle lines are drawn, the maneuvering is familiar, and the positions on both sides are well understood. What is the point of this present intervention? I have written plenty about this myself already. (14) Why another article attacking judicial review?

What I want to do is identify a core argument against judicial review that is independent of both its historical manifestations and questions about its particular 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 of its historical origins and their vision of what a less judicialized U.S. Constitution would involve. (15) This is not a criticism of Tushnet and Kramer. Their books are valuable in large part because of the richness and color they bring to the theoretical controversy. As Frank 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 constitutionalism." (16) And so it does. But I want to take off some of the flesh and boil down the normative argument to its bare bones so that we can look directly at judicial review and see what it is premised on.

Charles Black once remarked that, in practice, opposition to judicial review tends to be "a sometime 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. (17) In politics, support for judicial review is sometimes intensely embroiled in support for particular decisions. This is most notably true in the debate over abortion rights, in which there is a panic-stricken refusal among pro-choice advocates to even consider the case against judicial review for fear this will give comfort and encouragement to those who regard Roe v. Wade as an unwarranted intrusion on the rights of conservative legislators. I hope that setting out the core case against judicial review in abstraction from its particular consequences can help overcome some of this panic. It may still be the case that judicial review is necessary as a protective measure against legislative pathologies relating to sex, race, or religion in particular countries. But even if that is so, it is worth figuring out whether that sort of defense goes to the heart of the matter, or whether it should be regarded instead as an exceptional reason to refrain from following the tendency of what, in most circumstances, 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 an 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 to review legislation, they are not particularly interested in what the Republicans said to the Federalists in 1805 or in the legacy of Brown v. Board of Education. What is needed is some general understanding, uncontaminated by the...