Download this Paper Open PDF in Browser

Increasing Leverage: Judicial Review as a Democracy-Enhancing Institution

Quarterly Journal of Political Science, vol. 10: no. 3, pp 357-390, 2015

34 Pages Posted: 25 Jan 2012 Last revised: 23 Aug 2016

Nicholas Almendares

Seton Hall Law School

Patrick Le Bihan

New York University (NYU)

Date Written: January 23, 2012

Abstract

Although judicial review is used to police constitutional boundaries, the practice raises serious democratic concerns because unelected judges can overrule the decisions of political majorities. Using an agency model we show that judicial review has a heretofore unacknowledged democracy-enhancing effect. By constraining the policy choices made by elected representatives, judicial review increases the importance of office benefits as compared to policy benefits, making it more likely that politicians behave in the voters’ best interests. Politicians do so across policy issues, including those that courts cannot review, leading to a spillover effect. These effects do not depend on the preferences of the court, nor on the courts’ decisions being observed by the voters. The overall impact judicial review has on democracy is ambiguous, however, as this democracy-enhancing effect comes at the expense of turning some policies over to the courts. We suggest that this ambiguity can be resolved in favor of democracy by tailoring the courts’ jurisdiction or standards of review.

Keywords: countermajoritarian difficulty, judicial review, democracy, democratic theory, law and economics, courts, constitutional law

Suggested Citation

Almendares, Nicholas and Le Bihan, Patrick, Increasing Leverage: Judicial Review as a Democracy-Enhancing Institution (January 23, 2012). Quarterly Journal of Political Science, vol. 10: no. 3, pp 357-390, 2015. Available at SSRN: https://ssrn.com/abstract=1990527 or http://dx.doi.org/10.2139/ssrn.1990527

Nicholas Almendares (Contact Author)

Seton Hall Law School ( email )

One Newark Center
Newark, NJ 07102-5210
United States

Patrick Le Bihan

New York University (NYU) ( email )

Bobst Library, E-resource Acquisitions
20 Cooper Square 3rd Floor
New York, NY 10003-711
United States

Paper statistics

Downloads
148
Rank
170,758
Abstract Views
969