Judicial Review and American Constitutional Exceptionalism
Drake University Law School
Osgoode Hall Law Journal, Vol. 46, p. 535, 2008
Suffolk University Law School Research Paper No. 08-02
The conventional view is that the American model of judicial review largely conquered the world's democracies after the Second World War. This Essay questions that view by examining the following question: why do social movements contest constitutional meaning by fighting over judicial appointments in the United States and why would such a strategy make little sense in democracies that constitutionalized rights in the late twentieth century?
The short answer is that the United States has been both a model and an anti-model in the spread of judicial review around the globe. When the hope of Marbury (constitutionalized rights) traveled abroad in the second half of the twentieth century, it was joined with the fear of Lochner (courts run amok). As a consequence, polities abroad adopted stronger mechanisms of judicial accountability that make it difficult for social movements to wrangle over appointments as a means of resolving disputes over constitutional meaning. The political court model of judicial review, adopted in Germany and the democracies it influenced, relies on ex ante mechanisms of accountability. When supermajority appointment provisions are used to select members of a national high court, factions are forced to negotiate over appointments. The politicized rights model of judicial review, on the other hand, adopted in Canada and the democracies it influenced, relies on post facto mechanisms of accountability. When courts have the first but not the final word in interpreting the constitution, citizens will choose to overrule courts directly rather than fight over appointments. In short, popular constitutionalism, which originated in the United States, or the notion that citizens should play a role in construing their constitution has thrived abroad better than at home.
Battles over appointments have decisively shaped the United States Supreme Court and inadvertently resolved a long-standing scholarly debate between law professors and political scientists. Law professors believe that the Court is a countermajoritarian institution whose discretion is checked by law whereas political scientists believe that it is an anomalous majoritarian institution whose discretion is ultimately checked by appointments. It turns out that the law professors were right but for the reasons given by political scientists. For the first time in our nation's history, factions have succeeded in fashioning a countermajoritarian Court but they have done so through the politics of appointments.
Number of Pages in PDF File: 30
Keywords: judicial review, judicial appointments, judicial accountability, social movements, constitutional theory, comparative constitutionalism
Date posted: January 7, 2008 ; Last revised: October 17, 2011