The Distributional Effects of Minority-Protective Judicial Review

42 Pages Posted: 1 Aug 2011 Last revised: 5 Sep 2011

See all articles by Justin Fox

Justin Fox

Washington University in St. Louis - Department of Political Science

Matthew Stephenson

Harvard Law School

Date Written: 2011


Constitutional theorists usually assume that minority-protective judicial review leads to outcomes more favorable to the protected minority and less favorable to the majority. Our analysis highlights three e ects of judicial review that complicate, and sometimes undermine, this conventional wisdom. First, judicial review can induce a shift from a separating equilibrium|in which pro-majority leaders and pro-minority leaders pursue di erent policies|to a semiseparating or pooling equilibrium in which pro-minority leaders sometimes mimic pro-majority leaders by adopting the most antiminority policy that the judiciary would uphold. Second, if judicial validation of anti-minority policies is probabilistic rather than certain, pro-majority leaders may propose even more extreme anti-minority policies in order to deter pro-minority leaders from mimicking. Third, if voters cannot directly observe policy outcomes, then minority-protective judicial review may create incentives for a leader to signal (or conceal) her type by provoking judicial reversal. These e ects can sometimes nullify, or even reverse, the assumed relationship between minority-protective judicial review and pro-minority outcomes. When such reversal occurs, majoritarian democrats should favor minority-protective judicial review, while those concerned with protecting unpopular minorities should oppose it.

Suggested Citation

Fox, Justin and Stephenson, Matthew Caleb, The Distributional Effects of Minority-Protective Judicial Review (2011). APSA 2011 Annual Meeting Paper, Available at SSRN:

Justin Fox (Contact Author)

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

One Brookings Drive
Campus Box 1063
St. Louis, MO 63130
United States


Matthew Caleb Stephenson

Harvard Law School ( email )

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

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