Judicial Review as a Constraint on Tyranny of the Majority

Abstract

We develop a theoretical model to analyze the role of judicial review in preventing tyrannies of the majority. The model identifies conditions under which the optimal role of the court may be to allow tyranny of the majority – and the tyrannized minority will be better off as a result. This implication hinges on the timing of two events: the lifting of the veil of ignorance with respect to who gains and who loses from the policy subject to judicial review, and the revelation of new information (modeled as a random shock) that affects the level of the payoffs generated by that policy. We explain how the model applies to three controversial rulings (Serrano v. Priest, Kelo v. City of New London, and In re Marriage Cases). In so doing, we demonstrate how the model can help distinguish scenarios in which judicial constraints on majority rule are socially beneficial from those in which they are harmful.

Keywords: Courts, Judges, Judicial Review, Tyranny of the Majority, Serrano, Kelo, in re Marriages

JEL Classification: K00, K40, D72, D74, D78, N40