Judicial Review and Embarrassment

Abstract

Judicial review possesses a significant and remarkable potential to embarrass. Although some form of moderate embarrassment is built into the judicial review process, this paper contends that in some instances courts have transitioned from unintentionally to intentionally embarrassing the elected branches. The implications of this transition are significant, and could impact how the public view their elected officials. The ability to embarrass is also pronounced because of how courts can portray the elected branches in relation to their understanding of the constitution or major constitutional principles. This paper articulates three different types of portrayals that judicial review employs in relation to the elected branches: constitutional newbies, constitutional fools, and constitutional villains. Ultimately, the paper concludes that if judicial review becomes more about making statements or sending messages, asserting power over or attempting to subordinate the other branches, or needlessly rubbing salt into the already deeply troubled wounds of the political realm, then the idea and practice of judicial review becomes significantly diminished.

Keywords: judicial review, embarrassment, constitutional law, United Kingdom, United States