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Judicial Review and Democratic Failure

61 Pages Posted: 22 Aug 2009 Last revised: 19 Oct 2009

Justin Fox

Washington University in St. Louis - Department of Political Science

Matthew Stephenson

Harvard Law School; Institute for Corruption Studies

Date Written: August 20, 2009


We use an agency model to analyze the impact of judicial review on democratic performance. We find that judicial review may increase democratic failure by rescuing elected officials from the consequences of ill-advised policies, but may also decrease democratic failure by alerting voters to unjustified government action. We further find that judges will defer to the decision of elected leaders unless the level of democratic failure is sufficiently high. We then show how judicial review affects voter welfare both through its effect on policy choice and through its effect on the efficacy of the electoral process in selecting leaders. We also analyze how the desirability of judicial review is affected by characteristics of the leaders and the judges. Our welfare analysis establishes general conditions under which judicial review serves majoritarian interests - and thereby arguably increases the “democratic” character of political outcomes, despite the non-democratic nature of judicial review itself.

Keywords: judicial review, political agency

JEL Classification: H11

Suggested Citation

Fox, Justin and Stephenson, Matthew, Judicial Review and Democratic Failure (August 20, 2009). Harvard Public Law Working Paper No. 09-47. Available at SSRN: or

Justin Fox (Contact Author)

Washington University in St. Louis - Department of Political Science ( email )

One Brookings Drive
One Brookings Drive
St. Louis, MO 63130
United States


Matthew Stephenson

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States
617-495-9863 (Phone)

Institute for Corruption Studies

Stevenson Hall 425
Normal, IL 61790-4200
United States

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