Judicial Review of Direct Democracy: A Reappraisal
28 Pages Posted: 8 Mar 2016 Last revised: 1 Mar 2017
Date Written: February 24, 2017
In his dissent in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015), Justice Clarence Thomas argued that the Supreme Court had been inconsistent in the rigor it employs when considering constitutional challenges to the products of direct democracy, i.e., referenda and initiatives. Some cases seemed to use stricter scrutiny, and others lesser scrutiny, as compared to challenges to ordinary legislation. Justice Thomas argued that the review of direct democracy should be the same as for ordinary legislation, and this Article agrees. It challenges the position advanced by Professor Julian Eule 25 years ago, and others since then, that the process and products of direct democracy are suspicious enough to warrant stricter judicial scrutiny. In contrast, this Article contends that, on the whole, direct democracy is sufficiently similar to ordinary legislation, and not particularly invasive of minority rights, such that no special judicial hostility is warranted.
Keywords: direct democracy, referenda, referendum, initiatives, ballot initiatives, judicial review, standard of review, judicial scrutiny, Arizona State Legislature v. Arizona Independent Redistricting Commission
JEL Classification: K10,K41
Suggested Citation: Suggested Citation