The Importance of Being Positive: The Nature and Function of Judicial Review

48 Pages Posted: 10 Dec 2004

See all articles by Barry Friedman

Barry Friedman

New York University School of Law

Abstract

This lecture advances a positive theory of judicial review. Most legal theory about judicial review is normative: it envisions judicial review as posing either a hope for, or a threat to, democracy. The hope is that courts will protect rights; the threat is that judicial review will undermine popular governance. Depending on which position a scholar believes is correct, there follows prescription about how judges should behave.

The lecture relies upon learning from the social sciences - primarily history and political economy - to undermine the central assumption of both the hope and threat stories. At the heart of both hope and threat theories is an essentially empirical assumption: that the judiciary can impose its will in the face of contrary political sentiment. Evidence and theory from the social sciences, however, suggests courts are unlikely to be able to play the heroic role, and that in fact they have not acted contrary to popular will for an extended period of time.

If both hope and threat are overstated because judicial decisions cannot run into the face of popular will, what is the function of judicial review? Turning from critique, the lecture examines what we know about how judicial review operates, to build a positive theory of judicial review. The primary reaction to contested judicial decisions is backlash, followed by a period of engagement in which political forces seek to overturn unpopular decisions. Evidence shows that over time judicial decisions come into line with longstanding popular will.

In light of the actual process of judicial review, it is best understood as promoting dialogue in society about fundamental constitutional values. Courts foment debate over contested constitutional issues, and ultimately bring the Constitution into line with dominant views on those issues. There are normative reasons to applaud this role. But whether they are persuasive or not, as a positive matter this is what judicial review does.

Suggested Citation

Friedman, Barry, The Importance of Being Positive: The Nature and Function of Judicial Review. University of Cincinnati Law Review, Vol. 72, p. 1257, 2004. Available at SSRN: https://ssrn.com/abstract=632462

Barry Friedman (Contact Author)

New York University School of Law ( email )

40 Washington Square South
Room 317
New York, NY 10012-1099
United States
212-998-6293 (Phone)
212-995-4030 (Fax)

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