Is Judicial Review Compatible with Democracy?
31 Pages Posted: 4 Oct 2007 Last revised: 9 Feb 2010
Date Written: 2008
In this Article, I take up the controversial question of whether judicial review is compatible with democratic theory and seek to make two new contributions to the field. First, I reexamine the long-running dispute between Ronald Dworkin and Jeremy Waldron over the democratic legitimacy of judicial review, including Waldron’s latest response in a recent issue of the Yale Law Journal. After identifying two distinct objections that Waldron raises to Dworkin's theory of judicial review, I seek to show that that the first of these objections proves unsound and that the second is only sustainable if one accepts an understanding of “democracy” that is both unappealing on its face and inconsistent with current practice in the United States and elsewhere. Second, after identifying the alternative theory of democracy that appears to underlie Dworkin’s views, I briefly sketch out a constructive argument in support of judicial review based on the judiciary’s unique institutional posture. While my argument has important similarities to other theories that have been put forth by Dworkin, John Hart Ely, and Christopher Eisgruber, among others, it is unique in its focus on the requirement that judges issue written opinions for each decision and on the effect this requirement has on judicial decision making as compared to legislative deliberations. This leads to a fairly expansive view of the proper scope for judicial review in a democratic government, which I then defend against several common criticisms.
Keywords: Jurisprudence, Judicial Review, Judicial Decisionmaking, Democracy, Majoritarianism, Constitutional Interpretation, Deliberative Democracy
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