Pluralism, Conversation, and Judicial Restraint

Posted: 21 Oct 2001

Abstract

If democracy is partly about a lively public conversation, what are the implications for judicial review? This paper argues that pluralism - of outcomes, interest groups, and values - is good for public conversation. Judicial decisions sometimes promote pluralism in all three senses. But judicial review often has a bent towards uniformity rather than pluralism, if only because courts are in a single chain of command on constitutional and other federal questions. The "political branches", federal and state, are more decentralised. Thus when courts decide fewer public questions, there is space for a more pluralistic patchwork of political outcomes, hence space for better - more effective and responsible - public conversation as well. This suggests a rather restrained neo-Thayer standard for judicial review: courts should not lay down a constitutional rule, or perhaps even a broad interpretation of federal statute, unless things would be even worse from a pluralist point of view without the decision, or the decision is otherwise right "beyond a reasonable doubt".

Suggested Citation

Schwarzschild, Maimon, Pluralism, Conversation, and Judicial Restraint. Northwestern University Law Review, Vol. 95, 2001. Available at SSRN: https://ssrn.com/abstract=287496

Maimon Schwarzschild (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-2343 (Phone)
619-260-4791 (Fax)

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