Beyond Samuel Moyn’s Counter-Majoritarian Difficulty as a Model of Global Judicial Review

Abstract

This essay responds to Samuel Moyn’s critique of judicial review and his endorsement of judicial modesty as an alternative. Moyn argues that judicial over-reach has become an unwelcome global phenomenon that should be re-examined and curbed. Moyn argues that legislatures are the ideal forums for the types of decisions he objects to courts making. To explain this view of judicial review, he invokes the counter-majoritarian difficulty to account for the limits of judicial review. He endorses Justice Felix Frankfurter’s notion of judicial modesty as an ideal alternative to what he considers judicial overreach.

I reject Moyn’s claim that the kind of judicial modesty invited by the counter-majoritarian difficulty should define the role of courts for all time. By applying the counter-majoritarian difficulty well beyond its specific United States origins, Moyn assumes it is an unproblematic baseline against which to measure the role of courts anywhere, indeed everywhere — whether domestic or international. Further, the counter-majoritarian difficulty presents two starkly opposed choices — judicial supremacy under which the courts have the final word or majoritarian rule. This essay rejects the view that courts and legislatures are locked in a zero-sum struggle as contemplated by the counter-majoritarian difficulty.

The vision of judicial modesty that Moyn endorses says nothing about when it would be appropriate for courts to rule against legislative majorities. This view of judicial modesty is defied in Constitutions such as those of South Africa and Kenya which both explicitly provide for the manner in which they should be interpreted and that empower Courts to ‘develop’ the law. In the often revolutionary conditions of new democracies such as South Africa and Kenya, the types of functions expected of judicial review has a significant role both in constituting the new order as well as in disabling the continuation of the old order.

Moyn’s argument in favor of judicial modesty under-estimate the value of courts for litigants who have little power and ability to attain their objectives through direct political means. For such litigants, Courts are an important partner and catalyst in advancing their struggles. When such litigants file a case in court, they use the opportunity of litigating to advance their causes by publicizing and galvanizing their supporters. Using the example of litigation on access to essential medicines in South Africa, I show how hauling the government in Court was only one venue among others through which litigants engaged in seeking affordable access to essential medicines. The essay also uses examples from the East African Court of Justice to demonstrate that adopting judicial modesty, in accord with Moyn’s recommendation, would result in legitimizing authoritarian governance inconsistently with the promise of Bills of Rights and international treaty rights in newly democratizing countries and regions.

Keywords: Judicial Review, Counter-Majoritarian Difficulty, International Courts, Backlash, Felix Frankfurter, Revolutionary Constitutionalism, Democracy, Threats to Human Rights