Judicial Review in Troubled Times: Stabilizing Democracy in a Second Best World
Forthcoming Vol. 98, North Carolina Law Review.
51 Pages Posted: 11 Dec 2018 Last revised: 21 Jun 2019
Date Written: December 1, 2018
Debates over the role of judicial review in a constitutional democracy gravitate to one of two poles. Either the debates are framed in terms of the power of courts countering the outputs of a well-ordered legislative process, or they are framed in terms of the dominant rights commands of minorities ever vulnerable to the tyranny of the majority.
This Article parts company with the customary debate in two ways. First, the inquiry focuses on the structures of democratic governance rather than the relation between a governing majority and the rights of disfavored individuals or minorities. Second, and contrary to the conditions assumed by critics of judicial review such as Jeremy Waldron and Richard Bellamy, the aim here is to look directly to the “contaminated” domain of our lived experience in the moment rather than an idealized vision of well-ordered parliamentary sovereignty. Especially in a time of populist challenges to the institutionalization of democratic politics, the role of constitutional courts as potential brakes on the politics of immediacy takes on greater and greater significance.
Relying on examples from jurisdictions around the world, this Article sets out three types of interventions ranging in terms of how problematic they are for democratic governance. First is the use of constitutional review to prevent entrenched officeholders from undermining their electoral accountability, as seen in places are far removed as Taiwan and North Carolina. The second is the role of court interventions to bolster what is termed the “soft power” of democracy in which institutional norms compel a politics of negotiation and compromise. Finally, there is the temptation for courts to substitute judicial authority for failing state competence of democracies in general, and of the legislative branches in particular.
In each case, judicial review is examined to determine to what extent the judiciary can serve as an institutional buffer in protecting democracy against systemic failure, sometimes on matters that may pertain to fundamental liberties, but more often on questions of the exercise of governmental authority. The question here is whether in times of challenge to democratic functioning the judiciary may play a stabilizing role in warding off temporary political expedients that threaten governmental integrity. The term “stabilization” invokes the role of a central banker charged with maintaining fiscal integrity in the face of inevitable partisan demands for unsustainable short-term returns. In turn, the inquiry is whether judicial interventions in defense of the structural integrity of democratic rule can be thought in similar terms of conservatorship by a semi-independent entity and, in turn, how this institutional role of the judiciary might be utilized in times of systemic stress.
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