FEATURE
What’s So Bad About
Judicial Review?
Judges can provide a useful check on activist legislators,
argues Jonathan Crowe
J
udicial review has had some bad press
lately. The term, in its broadest sense,
refers to the power of judges to review the
acts of the other branches of government.
Some forms of judicial review, such as review of
administrative decisions to assess their conformity
with legislation, are relatively uncontroversial.
Others, such as the power of judges to strike down
or modify statutes for violating constitutional
rights, are far more contentious.
The latter form of judicial review has been
widely criticised for allowing ‘activist’ judges
to impose their moral and political views on
the community. My academic colleague James
Allan has virtually made a career out of attacking
rights-based judicial review,1 while the legal
philosopher Tom Campbell has denounced judicial
activism as akin to ‘treason.’2 Janet Albrechtsen, a
regular contributor to The Australian, frequently
uses her column to rail against judges who use
rights-based reasoning to overrule Parliament.
The debate about rights-based judicial review
raises questions about the best institutional
framework for regulating the exercise of
government power. Opponents of judicial review
argue that government decisions on moral and
political matters should always rest with the elected
legislature. Defenders of rights-based judicial
review do not dispute that the legislature should
generally have the last say on moral and political
issues. However, they stop short of saying that the
legislature should always have the last say.
The arguments presented by opponents of
rights-based judicial review typically involve
two intertwined components. The first consists
in pointing out the pitfalls involved in judicial
discretion. However, to make the case against
30 Vol. 24 No. 4 • Summer 2008–09 • Policy
judicial review, it is not enough to show that
judicial discretion is bad. It is also necessary to
show that legislative discretion is better. In order
to discharge this burden, critics of judicial review
typically place heavy emphasis on the fact that the
legislature is popularly elected.
My aim in this article is to offer a moderate
defence of rights-based judicial review, along the
lines mentioned above. I argue that the two prongs
of the argument against judicial review are typically
overstated. Judicial discretion is not nearly as
harmful or pervasive as its opponents sometimes
make out. And while the legislature does possess
an inherent form of democratic legitimacy, this
falls far short of justifying an unqualified hold on
government power. Judicial review plays a useful
role in keeping the legislature in check.
The majoritarian difficulty
One of the central issues raised by critics of
rights-based judicial review has come to be
known as the ‘counter-majoritarian difficulty.’3
This is a fancy way of pointing out that since
judges are unelected, it is difficult to explain
why they should have the power to impose their
views on other citizens. The counter-majoritarian
difficulty is often taken to raise a presumption
that all moral and political decisions should be left
in the hands of the elected parliament. However,
there is a parallel question that is frequently
overlooked: why should elected politicians
Jonathan Crowe is a Senior Lecturer
in the T. C. Beirne School of Law
at the University of Queensland.
What’s So Bad About Judicial Review?
be entitled to impose their views on the rest of
the community?
Opponents of judicial review often seem to
assume that there is something about democracy
that automatically legitimises the actions of elected
representatives. However, why does the fact that
someone is subject to a popular vote every three or
four years mean they have the authority to make
whatever decisions they like in the meantime?
This question, when confronted squarely, proves
deceptively difficult to answer.
It is tempting to simply say that elected
legislators wield the ‘authority of the people’ and
are therefore empowered to make decisions on their
behalf. On contested moral and political issues,
it is sometimes said, we should ‘let the numbers
count.’4 However, there is something deeply
unsatisfactory about this quick response. After all,
we do not usually think that any decision made by
majority rule is automatically legitimate. Suppose
I sneak into your house while you are at work and
change the locks. I then call for a quick vote of
your neighbours, a majority of whom think that I
should be able to stay and you should be evicted.
Does this mean that I am entitled to keep your
house? Should we ‘let the numbers count’?
The correct answer is surely ‘no.’ You have a
right to your house, and the security of that right
should not depend on your popularity with your
neighbours. However, what if all those living in
your local area vote for a representative body, and
that body then decides by majority vote that I
should get to keep your house? Does that make a
difference? Anyone who thinks the example is still
too far-fetched should consider the United States
Supreme Court case of Kelo v City of New London,5
where a city council sought to evict long-term
residents from their homes in order to sell them
to a developer. Does majority rule automatically
legitimise this kind of decision?
Now let us take a slightly different example.
Suppose that you and I disagree on the moral
status of abortion. You think abortion is morally
wrong, while I think it is morally permissible.
Further suppose that a majority of our local
parliamentarians agree with your position. The
legislature therefore passes a law prohibiting
abortion. This fairly commonplace scenario raises
the following difficult question: what authority
does the legislature have to impose its moral
beliefs upon the community? The issue is certainly
subject to deep disagreement, but why should
the legislature get to say which answer prevails
for everyone?
The problem of justifying the
decisions of judges is … just
one part of the wider problem
of justifying government authority.
The broader point here is that it often proves
just as difficult to say why elected representatives
should be able to impose their moral and political
views on other citizens as it is to say why unelected
judges should be able to do so. Let us call this the
‘majoritarian difficulty.’ Once the majoritarian
difficulty is noticed, it takes some of the sting
out of its counter-majoritarian counterpart. The
problem of justifying the decisions of judges is
revealed as just one part of the wider problem of
justifying government authority.
The worst system, except for
the others
It is important to notice the majoritarian difficulty.
However, the point should not be pressed
too strongly. Almost everybody in a country
like Australia would be inclined to think that
government by elected representatives is clearly
better than government by unelected autocrats.
The best way of making sense of this widespread
belief seems to be as follows. It is necessary for
society to run smoothly that we have some form
of government. This means appointing a person
or body to make decisions for the community.
The question therefore becomes: what is the best
available system for deciding who should play
that role?
The obvious answer seems to be that we
should adopt a system in which all citizens have
some kind of say in the decision-making process.
This account echoes Winston Churchill’s famous
aphorism that ‘democracy is the worst form of
government except all those other forms that have
been tried from time to time.’ Given that somebody
Vol. 24 No. 4 • Summer 2008–09 • Policy
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What’s So Bad About Judicial Review?
has to make decisions for the community, it may as
well be a person is who elected to that position.
It is worth noting, however, that this plausible
and widely-accepted justification for democracy
stops far short of justifying an unfettered form of
majoritarianism where we simply ‘let the numbers
count.’ It seems plausible that the best available
system of government is one where citizens elect
their rulers. It is far less plausible that the best
available system is one where those elected rulers
can then simply go ahead and do whatever they
like. The traditional formulation of this point is
that governments should follow the principle of
‘majority rule and minority rights.’ Even elected
governments should still observe limits on the way
they treat the rights and interests of individual
members of the community.
‘Politicians good, judges bad’
Defenders of the idea that moral and political
decisions should always be left to the legislature
might acknowledge the importance of individual
and minority rights, but nonetheless oppose
rights-based judicial review.6 They might argue
that individual rights are more likely to be
protected by an elected parliament than by
unelected judges. In order to make this argument,
opponents of judicial review have spent a lot of
time attacking the notion that judges make better
moral and political decisions than legislators.
Politicians are … hostage to
the political demands of a fickle
and uninformed public.
We will see below that this debate is largely
a red herring. However, let us have a look at the
main arguments advanced in this context by the
opponents of judicial review. The first step in the
argument is often to point out that there is no
good reason to think that judges will be better
at rights-based reasoning than politicians. After
all, judges are often unrepresentative and not
particularly in touch with the average citizen.
Why should we think they are better equipped to
make value judgements than the legislators?
32 Vol. 24 No. 4 • Summer 2008–09 • Policy
This argument is entirely correct, as far as it
goes. There is, indeed, little reason to think judges
will generally make better moral judgements than
politicians. However, it is important to note that
exactly the same argument can be made in reverse.
What reason do we have to think that politicians
will be better at moral reasoning than judges? After
all, politicians are often party hacks with little
demonstrated capacity for individual thought;
furthermore, they are hostage to the political
demands of a fickle and uninformed public. Why
should we regard them as particularly qualified to
decide complex social issues?
The typical response of the critic of judicial
review, at this juncture, is to point out that at least
politicians are popularly elected. However, as we
saw in our discussion of the majoritarian difficulty
above, this observation only gets us so far. Just
because someone holds an elected position does
not automatically give them the authority to make
whatever decisions they like about the rights and
interests of other citizens.
A second and related argument often
advanced in this context is that judicial review
is paternalistic. When judges impose their views
on the community, it makes them look as if they
think they know better than everyone else. Isn’t
this condescending and arrogant? The answer,
quite obviously, is ‘yes’: judges should not be too
quick to assume that they know better than their
peers on complex moral and political issues. Once
again, however, the argument can easily be turned
around and used against the politicians.
When members of Parliament impose their
views on the community, by setting up complex
schemes of social regulation designed to push our
behaviour in one direction or another, this also
makes it look as if they think they know better
than we do. Isn’t this condescending and arrogant?
Absolutely. The simple fact is that government
itself is a paternalistic institution. This applies just
as much to legislators as it does to the judiciary.
The spectre of judicial activism
At this point, the opponents of judicial review have
another argument up their sleeve. They point to the
spectre of the dreaded activist judge. Rights-based
judicial review, the argument goes, allows activist
judges to impose their personal moral agendas on
What’s So Bad About Judicial Review?
an unsuspecting public. Isn’t that a little bit scary?
Shouldn’t we be terribly worried about one person
or group having so much influence on legal and
political institutions?
Once again, however, the defender of judicial
review can readily concede the point. It’s true that
rights-based judicial review creates the possibility
of activist judges influencing political decisionmaking. However, legislative supremacy allows
for largely unfettered social engineering by an
activist legislature. And the potential harm in the
latter case is potentially much greater than in the
former. Yes, judicial activism is scary (although we
can certainly argue about whether it is anywhere
near as pervasive as its critics sometimes make
out). But if there’s one thing scarier than an activist
judge, it’s an activist member of Parliament.
Given a choice between a High Court judge
with a penchant for pursuing social justice through
their judgements, and an activist politician with
the balance of power in the Senate, I’d take the
judge any day of the week. After all, all activist
judges can really do is occasionally frustrate the
legislators. Activist legislators can potentially poke
their noses into whatever controversial issues they
like. Furthermore, we might disagree with judges,
but at least they have to publish their reasoning.
Activist legislators get their personal agendas
enshrined in law through murky backroom
negotiations with other politicians.
Human, all too human
More fundamentally, however, the whole debate
over whether politicians or judges are likely to
make better moral and political decisions simply
misses the point. The simple truth is that both
types of decision-makers sometimes get it right,
and both sometimes (perhaps more frequently) get
it wrong. Humans are fallible: this maxim applies
to politicians and judges, as well as to everybody
else. The real question therefore becomes what
system of government is best equipped to cope
with the basic fact of human fallibility.
The significance of human fallibility for the
design of political institutions is explored in
depth in the work of Friedrich Hayek. Hayek
advances an important critique of ‘constructivist
rationality’: the idea that all worthwhile human
institutions can and should be planned by human
reason.7 He points out it is simply unrealistic for
any human to possess the level of understanding
necessary to organise complex human interactions
in the most effective manner. We are always prone
to overlook the potential consequences of our
actions. This means we should be very cautious in
imposing our grand schemes on the community.
What, then, is the best form of government for
keeping the paternalistic and activist tendencies of
both judges and legislators in check? The obvious
answer seems to be a system where no one person
or group wields all the power. In other words, we
should have a system where the various powers of
government are divided between different bodies,
each of which is able to exert checks and balances
against the others. This is the basic insight behind
the doctrine of the separation of powers, famously
outlined in the work of the French philosopher
Montesquieu and adopted in one form or another
by all modern democracies.
If there’s one thing scarier than
an activist judge, it’s an activist
member of Parliament.
Critics of judicial review sometimes write as
if judges were totally free from constraints, while
members of the legislature are subject to legal,
moral, and political boundaries. However, this
is far too simple a picture. In reality, each of the
traditional branches of government is subject to
its own inbuilt constraints. This is what makes the
separation of powers such an ingenious system.
Rights-based judicial review allows judges to use
constitutional guarantees as a check and balance
against the power of the legislature.
It is true that, even in the absence of judicial
review, the legislature is still subject to moral and
political limits. However, these protections can
only extend so far. In particular, they depend
upon government decisions being made in a
public and transparent way. Given the vast scope
of the modern state and the limited interests and
concerns of the average voter, this type of public
scrutiny is likely to be confined in practice to a
narrow range of hot-button issues. The tendency
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What’s So Bad About Judicial Review?
of modern legislatures to delegate extensive
powers to the executive makes public scrutiny of
government decisions even more difficult.
A typical riposte to this line of argument by
opponents of rights-based judicial review is to
admit the failings of the legislative process but
argue that judges are even more unconstrained
than politicians. However, it is hard to see how
this reply could survive even a cursory attempt at
even-handed analysis. Judicial review is subject to
inbuilt legal constraints: judges must work within
the framework of rules and principles provided by
the constitution. All judges, except the members
of the highest court in the judicial hierarchy, are
subject to oversight by higher legal bodies. They
are also subject to moral constraints: judges, like
legislators, face moral pressure to make decisions
that accord with social values.
It is true that judges, not being elected, are
not subject to direct political limits. On the other
hand, they have a much stronger obligation than
legislators to explain and justify their actions.
Politicians can vote for legislation without ever
uttering a word to explain their reasons. Judges
must provide detailed legal justification for any
exercise of judicial review. This requirement is
strongest at the highest levels of the judiciary.
The myth of ‘judicial supremacy’
Once again, the debate about whether judges or
legislators are more constrained and accountable
turns out to be misleading. It is not that one
type of decision-maker is clearly more subject to
constraints than the other. Rather, both are subject
to a number of different types of limitations. The
question becomes where we should strike the
balance in determining which powers we allocate
to each type of body.
Opponents of rights-based judicial review
often warn against the dangers of ‘judicial
supremacy.’ This phrase conjures up the spectre of
an all-powerful judiciary, with unchecked power
over the other organs of government. This notion
of ‘judicial supremacy’ would indeed be scary, if it
actually existed anywhere in the world. In reality,
however, there is no democratic system the world
over where the judiciary enjoys more real political
power than the elected legislature. At the most,
judges have the ability to set marginal limits on
34 Vol. 24 No. 4 • Summer 2008–09 • Policy
what the legislature can do. Even in countries
with relatively strong judicial review, such as the
United States and Canada, the power of politicians
simply dwarfs the power of judges.
The debate about rights-based judicial review
is not one between legislative supremacy and
judicial supremacy. It is a debate between a very
strong version of legislative supremacy and a
slightly less strong version of legislative supremacy.
And let us not forget that, even under relatively
strong models of judicial review, Parliament can
often circumvent the rulings of judges simply by
framing its legislation in a slightly different way. In
this respect, the ultimate effect of judicial review is
typically to create a dialogue between judges and
the legislature, in which Parliament almost always
has the last word.
A question of balance
Opponents of rights-based judicial review say:
let’s give all the power to the elected legislators,
just because they’re elected. We have seen that this
position frequently rests on two fairly dubious
foundations: first, an overconfident and uncritical
emphasis on majority rule as the cornerstone
of legitimate government; and, second, a scare
campaign against the dangers posed by judicial
discretion, which typically ignores or at least
understates the equal or perhaps greater hazards
posed by activist politicians.
It is far better to say this: let’s give most of the
power to the elected legislature (as is the case in
every democracy in the world), but let’s keep some
of the power for the judges. Democracy may be
the best system available for deciding who should
oversee the government. However, it’s far from
perfect, and the power it gives to politicians is
often used much too hastily, if not deliberately
abused. Why not give a modest amount of power
to some other body, if only to remind legislators
of the limits of their role?
The ancient Greek philosopher Aristotle
warned more than two thousand years ago against
the dangers of unchecked government power.
He noted that people who find themselves with
unfettered power tend to favour themselves and
others who are like them, often for no good
reason.8 This observation is just as valid today as it
was then. Democracy is, at best, a partial cure for
What’s So Bad About Judicial Review?
this problem; indeed, in some respects, it makes
things worse, by holding lawmakers hostage to the
demands of particular constituencies.
Judicial review protects individual and minority
interests, not because judges are more likely than
politicians to get things right, but because it
avoids concentrating all the lawmaking power in
a single body. It leaves the vast bulk of political
and moral decision-making to the democratically
elected legislature, but also gives a smaller share of
power to the independent judiciary. This makes it
somewhat less likely that hasty or unjust decisions
will be made without anyone noticing. And what’s
so bad about that?
Endnotes
1. See, for example, James Allan, ‘An Unashamed
Majoritarian,’ Dalhousie Law Journal 27 (2004),
537–553; James Allan, ‘Human Rights: Can We
Afford to Leave Them to Judges?’ Commonwealth
Judicial Journal 16:2 (2005), 4–10.
2. Tom Campbell, ‘Judicial Activism: Justice or
Treason?,’ Otago Law Review 10 (2003), 307–326.
3. For the original use of the phrase, see Alexander
Bickel, The Least Dangerous Branch (New Haven:
Yale University Press, 1986), 16–18.
4. See, for example, James Allan, ‘An Unashamed
Majoritarian,’ 538.
5. 545 U.S. 469 (2005).
6. For a famous example of this line of argument,
see Jeremy Waldron, ‘A Right-Based Critique of
Constitutional Rights,’ Oxford Journal of Legal
Studies 13 (1993) 18–51.
7. F. A. Hayek, Law, Legislation and Liberty (London:
Routledge, 1982), vol. 1, ch. 1.
8. Aristotle, Nicomachean Ethics, book V, part VI.
The author would like to thank Jim Allan, Francesca
Bartlett, Darryn Jensen and Andrew Norton for their
helpful comments on an earlier version of this article.
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