IS JUDICIAL REVIEW COMPATIBLE
WITH DEMOCRACY?
Scott M Noveck*
INTRODUCTION
Jeremy Waldron's recent restatement of his arguments against judicial review is the latest salvo in a long-running feud with Ronald Dworkin over judicial review's democratic legitimacy.' This Article revisits
that debate and deconstructs their arguments to shed new light on the
core of their dispute. In doing so, it takes up three questions about the
potential role for judicial review in a democratic government. First, can
a non-majoritarian institution like judicial review ever be a legitimate
part of democratic government? Second, if there is no theoretical incompatibility between democracy and judicial review, should members
of a democratic society desire to establish an institution like judicial review? Third, given the answers to the first two questions, what form
should judicial review take, and how is it to be balanced against legislative decision-making?
The Article will begin by considering Dworkin's result-driven argument for judicial review and Waldron's procedure-based critique, and
will show that upon close examination this critique proves to be unsound. With that aside, it will then examine Dworkin and Waldron's
dispute over judicial review's democratic legitimacy. This dispute is
grounded in their very different views about what the nature of "democracy" is, which shall be labeled, respectively, the "intrinsic view" and the
"instrumental view." After showing that certain forms of limited judicial review may be legitimate even on Waldron's own intrinsic view of
democracy, it will then compare Waldron's view to Dworkin's instrumental view, and find Waldron's view to be unsatisfactory because it is
* J.D. Candidate, Stanford Law School, 2009; A.B., Princeton University, 2006. An earlier
version of this Article was presented at a seminar on Philosophy of Law at Princeton University
in May 2006. The Author would like to thank Robert P. George, Dennis Patterson, and the
other seminar participants for their comments and suggestions. This Article benefited greatly
during its development from conversations with Dan Greco, Jason Harrow, and Karis Gong.
Thanks also to the editing team at the Cardozo Public Law Policy & Ethics Journal for their
dedication and assistance.
I Jeremy Waldron, The Core ofthe Case Against JudicialReview, 115 YALE L.J. 1346 (2006)
[hereinafter Waldron, AgainstJudicial Review].
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unable to accept the delegation of authority to independent institutions
that may be of great social value, such as independent central banks for
setting monetary policy. The instrumental view of democracy, on the
other hand, offers a much greater scope for judicial review. Under this
framework, the Article briefly sketches a constructive argument for judicial review based on the judiciary's unique institutional posture, particularly the requirement that courts issue a written opinion justifying each
decision. Finally, the Article will address the standard by which members of a democratic society should evaluate these arguments, and conclude that judicial review is a democratically legitimate and distinctly
valuable social institution.
I.
DESIGNING "DEMOCRATIC"
INSTITUTIONS:
THE MAJORITARIAN PARADOX
A.
Dworkin's Result-Driven Standard
Ronald Dworkin argues that judicial review makes for good government because it can lead to some measure of better or "more just"
results. In particular, Dworkin asserts that "[t]he United States is a
more just society [because it has a judicially enforced constitution] than
it would have been had its constitutional rights been left to the conscience of majoritarian institutions."'2 This thesis, in turn, relies on two
lesser claims: first, a presumption that there is some shared conception
of justice that people can appeal to in making this assessment; and second, a counterfactual claim about how the United States would have
been in the absence of judicial review. For now, the correctness of these
two claims can be assumed, but they will be revisited shortly.
What does this thesis imply about how courts should resolve constitutional controversies that involve moral questions? Dworkin answers, "I see no alternative but to use a result-driven rather than a
procedure-driven standard for deciding them."' 3 Indeed, for Dworkin,
procedure-driven standards should themselves be evaluated by their expected results: "The best institutional structure"-that is, the best governing procedure-"is the one best calculated to produce the best
answers . . . ." This focus on results leads to the theory of interpretation that Dworkin calls "the moral reading," which says that we (and
2
RONALD DWORKIN, LAW's EMPIRE 356 (1986) [hereinafter DWORKIN, LAW's EMPiRE].
3 RONALD DWORKIN, FREEDOM'S LAw 34 (1996) [hereinafter DWORKIN, FREEDOM'S
LAw].
4 Id.
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DEMOCRACY AND JUDICIAL REVIEW
judges in particular) should "interpret and apply [the Constitution's]
abstract clauses on the understanding that they invoke moral principles
about political decency and justice." 5 It follows from this theory that
the correct interpretation of the Constitution's abstract clauses is the
one which, according to these moral principles, achieves the best results.
The moral principles to be applied are not necessarily those of the judge
himself, which would open Dworkin to a charge of judicial supremacy,
but rather those principles most consistent with the nation's history and
traditions.
B.
Waldron's ProceduralCritique
Waldron attacks the first of the two claims underlying Dworkin's
thesis identified above: that is, the claim that there exists some shared
conception of justice, and the results that it demands, to which a court
can appeal. The result-driven standard advocated by Dworkin can only
function if there is consensus about which results are correct. But as
Waldron notes, "[we] disagree about what would count as the right results," so a further standard is needed-call it a "meta-standard"-for
identifying the "correct" results. 6 This meta-standard must be a procedure-driven standard, for if it is a result-driven standard, a "meta-metastandard" would be necessary for identifying criteria to judge that standard, ad infinitum. Waldron thus concludes that "we cannot use a results-driven test, because we disagree about which results should count,"
7
and, "[i]t looks as though it is disagreement all the way down."
At some point, there must be a procedure-driven standard, which
Waldron thinks should be some form of majoritarianism, since "[i]f a
question comes up for political decision in a community, a member of
the community might reasonably ask to participate in it on equal terms
with his fellow citizens."' Waldron therefore rejects Dworkin's defense
of judicial review, and calls instead for political issues to be decided by
elected representatives in legislatures.
5 Id. at 2.
6 JEREMY WALDRON, LAW AND DISAGREEMENT
AND DISAGREEMENT].
7
Id. at 295.
8 Id. at 293.
294 (1999) [hereinafter
WALDRON, LAW
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The MajoritarianParadox
The last part of Waldron's argument is not sound. One can agree
with Waldron that, because there is no consensus on the right result,
one must resort to procedure. But which procedure should be favored?
Majoritarianism, perhaps through legislative decision-making, is one option. But sometimes people might think themselves better off with a
procedure that gives some more say than others. For instance, in some
cases they might recognize certain people to be more knowledgeable
about an issue and to possess a special expertise that makes them better
qualified to decide that issue. In other cases, they might think that
some people have better incentives to reach the right judgment on a
particular issue, and therefore their opinions might be considered more
reliable.
Consider the example of an independent central bank for setting
monetary policy. Considerations of both expertise and incentives favor
decisions by a central bank rather than by legislatures. Good monetary
policy requires a sophisticated understanding of different models of economic activity and advanced statistical methods; it would be wise to
leave these decisions to those individuals with the proper expertise. But,
it is also crucial to the function of a central bank that it be independent,
because in the realm of monetary policy, short-term incentives are at
odds with long-term goals. Keeping inflation low often requires a tightening of monetary policy, which causes an economic contraction and
increases in unemployment-consequences that are politically unpalatable. 9 When the principle of keeping inflation low is at odds with incentives faced by legislatures, society is better off with monetary policy
controlled by an independent, non-majoritarian body.
Waldron begs the question against non-majoritarian institutions by
privileging majoritarianism at a premature stage in his argument. It is
not obvious from his argument why unfettered legislative decision-making should necessarily be preferred to procedures that give more weight
to those better situated to decide an issue. Waldron makes the point
that when disagreement goes "all the way down," it reaches a point
where reason is exhausted, and majority vote may be the only fair way to
9 See, e.g., N. GREGORY MANKIW, MACROECONOMICS 392 (5th ed. 2003) (discussing the
tradeoff between inflation and unemployment); ROBERT H. FRANK & BENJAMIN S. BERNANKE,
PRINCIPLES OF MACROECONOMICS 421 (3d ed. 2007) (explaining how inflation control measures reduce economic output).
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proceed.' ° But the argument hasn't reached that point yet; there may
still be good reason to favor non-majoritarian institutions, and one
should not make a presumption in favor of legislatures before considering whether there might be reason to choose otherwise.
Thus, one needs a procedure for deciding which political procedures or institutions to establish. At this stage, the question takes on a
circular form and, at first, it may be appropriate to resort to a majority
vote. If there is disagreement about which procedure to use at this level,
then it is indeed likely to be a truly fundamental disagreement that
"goes all the way down," with no shared terms or premises available for
resolving it. In such a situation, there are several virtues to a majority
vote: one might think it important that everyone share responsibility for
their collective fate, or that the default procedure should be one that
treats every person as an equal, or that bigger groups are better at decision-making than smaller groups.
But it is crucial to see that a majority vote about political procedures and institutions might not always choose majoritarian procedures
and institutions; this concept is what shall be referred to in this article as
the majoritarianparadox. It appears, for example, that there are good
reasons for people to relinquish some of their majoritarian authority to
an independent central bank." Likewise, it is possible for people to
decide that the institution of judicial review makes for better governing. 12 Waldron's argument thus fails to rule out judicial review unless he can point to some good reason why a majority of the people
13
would be wrong to implement a non-majoritarian procedure.
In this sense, Robert P. George is correct that the issue of judicial
review (and other questions about the arrangement of political institutions) "is properly conceived as itself a question of positive law."' 4 But
Waldron's attempt to pass the buck on this question to a proceduredriven standard still fails to answer a critical normative question: when
individuals are voting about what sorts of institutions to establish, how
10 WALDRON, LAW AND DISAGREEMENT,
supra note 6, at 294-95.
11 See supra note 9 and accompanying text.
12 See infia Part III for several reasons why this might be so.
13 See infra Part II.A for one such argument.
14 Robert P. George, Natural Law and Positive Law, in THE AUTONOMY OF LAW: ESSAYS
ON LEGAL POSITIVISM 321, 332 (Robert P. George ed., 1996). The Author takes this idea to be
Dworkin's position as well. While Dworkin believes that judicial review should be permissible,
he also takes the position that "[d]emocracy does not insist on judges having the last word .
DWORKIN, FREEDOM'S LAW, supra note 3, at 7.
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[
should they vote? Each person needs a standard for deciding which way
to vote, and for this decision there is no procedure-driven standard available; each person must form a substantive view about which arrangement of political institutions to support. 5
Faced with this normative question, Dworkin's argument about
the results of judicial review is once again relevant. If one agrees with
Dworkin that judicial review leads to more just and desirable results,
then there is reason to support judicial review. If, on the other hand,
one determines judicial review to be unjust or undesirable, there is reason to oppose it. 6 Dworkin and Waldron disagree on this question as
well, and to get to the heart of this dispute one must delve into a larger
debate over the nature of "democracy."
II.
Two
VIEWS OF DEMOCRACY
Is there another argument available to Waldron to show that judicial review is democratically illegitimate? This question proves to be
quite difficult because, as Dworkin notes, "it is a matter of deep controversy what democracy really is,"' 17 and this latent controversy plays a
central role in Dworkin and Waldron's disagreement over the value of
judicial review. Waldron asserts that judicial review is troubling because
"[t]here is something lost, from a democratic point of view, when an
unelected and unaccountable individual or institution makes a binding
decision about what democracy requires.""i Dworkin, on the other
hand, asserts just the opposite, claiming that judicial review "is not antidemocratic but, on the contrary, is practically indispensable to
democracy."' 9
To understand this disagreement, one must consider two very different views about the nature of democracy and the reasons for support15 Michael Walzer similarly argues that "[n]o procedural arrangement can be defended except by some substantive argument ....
Michael Walzer, Philosophy and Democracy, 9 POL.
THEORY 379, 386 (1981).
16 It can thus be seen that the results/procedure dispute consists largely of Dworkin and
Waldron talking past each other. Waldron is right to argue that, in the context of social choice
where consensus on "correct" results cannot be expected, one must ultimately resort to a procedure-driven standard. But that procedure will simply be a way of aggregating individuals' views,
and individuals' views cannot be based on procedure. They must form a substantive view about
the best results and use the result-driven criteria to guide their vote, and so Dworkin must be
correct as well.
17 DWORKIN, FREEDOM'S LAW, supra note 3, at 15.
18 WALDRON, LAW AND DISAGREEMENT, supra note 6, at 293 (emphases added).
19 DWORKIN, FREEDOM'S LAW, supra note 3, at 7 (emphasis added).
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ing it. The first view sees democracy as a form of intrinsicgood, based
on the right of the people to be responsible for any law which binds
them, even if the laws they choose are far from ideal. The second view
advocates democracy as an instrumentalgood-that is, as being the form
of government most likely to select policies that conform to some understanding of what is good or just-but authorizes deviations from the
majoritarian or participatory ideal insofar as these deviations can better
promote justice, efficiency, or some other good.
A.
Democracy as an Intrinsic Good
The views expressed by Michael Walzer in his article Philosophy and
Democracy20 will serve as the model of the intrinsic view. Walzer believes that for a law to be just it must be able to be traced back to a
decision by the people as a whole, because "if the law is to bind them as
free men and women, they must also be its makers."'2' On this view,
"[t]he people's claim to rule does not rest upon their knowledge of
truth, '2 2 and Walzer denies rather strikingly "that the power of the people ought to be limited by the rightness of what they do . . "23 In
other words, Walzer argues that "knowing the right decision" is not the
same as "having the right to decide," and we must therefore respect the
people's right to decide the law for themselves even if we "know" that
their decision is wrong. 24 For Walzer, the justification for democracythe people's right to be responsible for any law that binds them-is in
no way dependent on the laws that result, or whether these laws are
good or bad, or whether some other system might do better. What
makes the law just, according to the intrinsic view of democracy, is that
it originates from the will of the people to whom it applies, as expressed
through their majoritarian legislatures, and non-majoritarian institutions must therefore be seen as unjust.
Walzer takes this position a step further and denies the possibility
that the people could choose to delegate any of their authority to an
independent, non-majoritarian body. As Walzer writes,
one might insist on the inalienability of the popular will and then on
the indestructibility of those institutions and practices that guarantee
20
21
22
23
24
Walzer, supra note 15.
Id. at 383.
Id. (emphasis added).
Id. at 387.
Id. at 386.
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[Vol.
the democratic character of the popular will ....The people cannot
renounce now their future right to will (or, no such renunciation can
ever be legitimate or morally effective). 2 5
This idea rules out institutions, like the independent central bank,
whose appeal rests on insulation from momentary political pressures.
The central bank serves a valuable function, in part because it can pursue important long-term goals, but this requires that legislators not be
able to hastily step in and overrule its decisions.26 However, in Walzer's
view, the legislature cannot legitimately bind its future self and thereby
refuse itself the ability to interfere with central bank decisions, undermining the central bank's independence.
This view likewise dictates that the people cannot legitimately
choose to establish expansive judicial review of the form Dworkin advocates, for judicial review requires that the people commit themselves to
respecting the future rulings of the courts even when those pose limitations on the popular will. (It will be argued below that the distinctiveness of the intrinsic view requires its proponents to deny the legitimacy
of delegation of this sort, or else the distinction between "having the
27
right to decide" and "knowing the right decision" quickly collapses.)
This view, or something much like it, is what really drives Waldron's conclusion that American political institutions must consist of
majoritarian legislatures unfettered by judicial review. Waldron conceives of democracy as requiring that "every man and woman in the
society has the right to participate on equal terms in the resolution of
that disagreement. "28 Like Walzer's view, this position focuses on the
right to decide without concern for knowing the right decision. As Waldron phrases it, his conception of democracy also appears to rule out
any sort of delegation, for when the people delegate, they are no longer
all participating "on equal terms." For instance, the idea of a central
bank, where society delegates decision-making authority to independent
25
Id. at 384.
26
It is true that in the United States, Congress could step in and overrule the Federal Re-
serve if it wished. However, this arrangement still gives significantly more weight to the central
bankers, who make the initial decision, than to the rest of the people as a whole, and respect for
the central bank's independence makes it unlikely (even if not technically impossible) that Congress will intervene.
27 See infra Part II.D.
28 WALDRON, LAW AND DISAGREEMENT, supra note 6, at 283.
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experts, fails to let the people later participate in monetary policy decisions on equal terms with the central bankers. 2 '
It is important to see that Waldron's requirements of "participation" and "equal terms" are two separate claims. Few would dispute
that democracy must generally involve the participation of the people in
making political decisions, but this alone is insufficient to reach Waldron's conclusion that the proper democratic decision-making procedure is always a majoritarian one; that conclusion requires acceptance of
the equal terms premise as well. But, as argued above, in cases where
some individuals have greater expertise or face better incentives, it might
not be desirable for everyone to participate on equal terms, and an
equal-terms majoritarian decision about whether that decision should be
made on equal terms might well disavow majoritarianism. 30 For these
reasons, one should be skeptical of the intrinsic view of democracy that
is required to support Waldron's conclusions.
B.
The Intrinsic View and Judicial Review
Before considering the alternative view of democracy, it is worth
considering the possibilities for judicial review if the intrinsic view is
accepted. While it may appear at first that the intrinsic view rules out
all forms of judicial review, it is in fact possible to advocate for the
intrinsic view without disavowing judicial review entirely. For instance,
Justice Stephen Breyer, who clearly believes that judicial review serves an
important function, has himself recently expressed a theory of government that closely resembles the intrinsic view of democracy: "[I] t should
be possible to trace without much difficulty a line of authority for the
making of governmental decisions back to the people themselves ...
And this authority must be broad. The people must have room to decide and leeway to make mistakes." 3 ' Like Walzer and Waldron, Breyer
is concerned with the right of the people to decide and is unconcerned
32
with whether they will know the right answer.
29 See supra note 26 and accompanying text.
30 See supra Part I.D.
31
STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION
15 (2005).
32 Breyer expresses support for "[d]elegated democracy." Id. at 23. Comparatively, Richard
Posner suggests that in this passage Breyer is actually referring to representative democracy, not
delegating to an unelected body. Richard A. Posner, Justice Breyer Throws Down the Gauntlet,
115 YALE L.J. 1699 (2006).
CARDOZO PUB. LAW, POLICY & ETHICS .
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1.
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Process-Based Theories
The intrinsic view of democracy is entirely consistent with, and is
greatly facilitated by, process-based theories of judicial review like that
advocated by John Hart Ely. 33 The intrinsic view presupposes that
majoritarian legislators faithfully represent all of their constituents. But
as Ely points out, the political process can "malfunction" either when
"the ins are choking off the channels of political change to ensure that
they will stay in and the outs will stay out"-that is, when those in
power pass laws to help keep themselves in office-or when "an effective
majority [is] systematically disadvantaging some minority out of simple
hostility or a prejudiced refusal to recognize commonalities of interest,
and thereby denying that minority the protection afforded other groups
by a representative system. ' 34 In such cases, where the political process
is broken and unwilling to fix itself, Ely writes:
Obviously our elected representatives are the last persons we should
trust with identification of either of these situations. Appointed
judges, however, are comparative outsiders in our governmental system, and need worry about continuance in office only very obliquely. . . . [This] puts them in a position objectively to assess
claims .. .that either by clogging the channels of change or by acting
as accessories to majority tyranny, our elected representatives in fact
are not representing the interests of those whom the system presup35
poses they are.
If the courts work to protect the political process in this way, even those
who hold the intrinsic view of democracy can agree that "a representation-reinforcing approach to judicial review ... is not inconsistent with,
but on the contrary (and quite by design) entirely supportive of, the
underlying premises of . . . representative democracy. ' 36 Walzer, too,
seems to anticipate this deficiency, conceding the need for "some kind
of enforcement, against the people if necessary, of nondiscrimination
' 37
and [other] democratic rights. "
It is important to recognize that the role of the courts in policing
the political process arises from the better incentives they face due to
33 JOHN HART ELY, DEMOCRACY AND DISTRUST
34 Id. at 103.
(1980).
35 Id.
36
Id. at 88.
37 Walzer, supra note 15, at 384 (emphasis added).
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their unique institutional posture. Because some judges are granted life
tenure, and perhaps also because they are appointed rather than elected
(although their appointment has its roots in a political process), they are
insulated from momentary political pressures and "can sensibly claim to
be better qualified and situated to perform [this task] than political
38
officials."
2.
Substantive Entanglements
Acceptance of this process-based theory of judicial review may,
however, have substantive implications as well, as it is impossible to fully
disentangle procedural issues from substantive value judgments. For instance, while advocates of campaign finance reform believe that limiting
the disproportionate political influence of the wealthy would improve
the democratic process, such reform requires the substantive conclusion
that political donations do not count as speech protected by the First
Amendment. Similarly, some have suggested that one cannot fully participate in the democratic process without possessing some minimum
level of education, but a right to education can be seen as a substantive
value judgment despite its procedural implications. Economic liberty
has likewise been sometimes said to be crucial for individual autonomy
and thus a procedural issue as well as a substantive issue. 3 9 And Dworkin makes the stronger claim that "majoritarianism does not guarantee
self government unless all the members of the community in question
are moral members." 40 Such a position may require that homosexuals,
polygamists, and other morally disfavored groups be given full acceptance, another largely substantive decision.
That political process concerns have substantive implications is recognized by Waldron as well:
Based as [participatory democracy] is on respect for persons as moral
agents and moral reasoners, the premises of that argument will certainly yield substantive conclusions about what people are entitled to
so far as personal freedom is concerned and it may well yield conclu38 ELY, supra note 33, at 88.
39 See, e.g., MURPHY ET AL., AMERICAN CONSTITUTIONAL INTERPRETATION 1168-71 (3d
ed. 2004).
40 DWORKIN, FREEDOM'S LAW, supra note 3, at 23. For a similar argument, see also JOHN
RAWLS, A THEORY OF JUSTICE: REVISED EDITION 386-91 (1999) (discussing "self-respect as the
most-important primary good").
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412
sions about affirmative entitlements in the realm of social and eco4
nomic well-being. '
Waldron is not clear, however, on how he thinks these needs might be
protected if they become suppressed by a broken political process.
The substantive protections arising from a process-based theory are
very limited in scope. They represent not the rights that should be afforded to persons by virtue of their humanity, but instead merely those
implicated as being incident to the political process. The rights of persons may extend beyond the minimum rights required for political participation, but beyond this procedural core, the intrinsic view of
democracy leaves substantive decisions about what persons deserve to
the whim of majoritarian procedures.
C.
Democracy as an Instrumental Good
The instrumental view of democracy takes a very different track
from the intrinsic view, advocating democratic procedures not out of
concern for a supposed right of a majority of the people to be responsible for the laws that they must follow-which, ironically, would cause
someone who is consistently in the minority to be governed by laws for
which he was never responsible-but rather because democratic procedures often result in policies that are desirable on some other grounds.
Such a view can commonly be found, for instance, among scholars of
'deliberative democracy.' For example, as Philip Pettit has explained:
According to this conception, the people should control government
democratically because that is the only mode of control under which
those reasons can be expected to guide government that are recognized
in common deliberation as the valuations relevant to determining
public policy. This conception represents democracy, not as a regime
for the expression of the collective will, 42
but rather as a dispensation for
the empowerment of public valuation.
Deliberation can lead to better policies in at least two distinct ways.
The first, and perhaps the more commonly recognized, is that, as Christopher Eisgruber has put it, "sustained public deliberation helps moral
43
opinion to converge upon new and better positions.
41 WALDRON, LAW AND DISAGREEMENT,
42
supra note 6, at 285.
RATIO JuRus 52, 58 (2004).
Philip Pettit, Depoliticizing Democracy, 17
43 CHRISTOPHER EISGRUBER, CONSTITUTIONAL SELF-GOVERNMENT
55 (2001).
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Less often recognized, and of greater concern for the moment, is
the second way in which public deliberation leads to better and more
just policies. Not all reasons are deemed acceptable or equally persuasive
in the public sphere, and the reasons which public debate filters out are
those which, if they were followed, would lead to policies that are in
some sense unjust. Pettit suggests, for example, that:
Considerations that would not pass muster in public debate about
what government should do include self-seeking observations to the
effect that such and such an initiative would give one section of the
population an advantage over others, as well as expressions of what is
required by an ideal or cause that is not shared by all. 4
Eisgruber similarly points to "the people's belief that moral reasons are
different from self-interested reasons."45 The idea of democracy held by
these scholars is at odds with the intrinsic view of democracy because
they would find policies based on these self-serving or inaccessible reasons to be unjust even ifthose policies were arrived at through a majority vote. Supporters of deliberative democracy advocate for democracy
not because they believe in the good of majoritarianism for its own sake,
but because they believe that sufficient public debate and deliberation
will lead people to take positions based on the right reasons, and these
evaluations, once aggregated, are most likely to arrive at the best and
most just policies.
1.
Democracy as Equal Respect
The reasoning deemed acceptable for public policy-that which
advocates of deliberative democracy find acceptable for public debateappears to be that which treats every person's interests with equal concern and respect. This ideal, not coincidentally, is the same standard
.employed by Dworkin's "constitutional conception of democracy,"
which "takes the defining aim of democracy to be . . . that collective
decisions be made by political institutions whose structure, composition, and practices treat all members of the community, as individuals,
with equal concern and respect."4 6 A similar theme is found in Dworkin's concept of moral membership:
44
Pettit, supra note 42, at 59.
45 EISGRUBER, supra note 43, at
46 DWORKIN, FREEDOM'S LAW,
55.
supra note 3, at 17.
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Moral membership involves reciprocity: a person is not a member unless he is treated as a member by others, which means that they treat
the consequences of any collective decision for his life as equally significant a reason for or against that decision as are compatible conse47
quences for the life of anyone else.
At the same time, Dworkin is quite explicit that his view supports democracy in the majoritarian sense only for instrumental reasons:
The constitutional conception requires these majoritarian procedures
out of a concern for the equal status of citizens, and not out of any
commitment to the goals of majority rule. So it offers no reason why
some non-majoritarian procedures should not be employed on special
the equal status
occasions when this would better protect or enhance
48
that it declares to be the essence of democracy.
What sort of system would be ideal from the point of view of equal
respect? Perhaps it would be Dworkin's moral membership par excellence: each individual first puts aside his self-interest and instead takes
every person's interests into account equally, then decides which policy
is best-a decision which may still be based on his subjective perceptions about what sort of concerns are due the most weight, but which
does not favor his own interests simply by virtue of their being his.
After all, the act of voting serves solely as an aggregation mechanism,
taking every individual's assessment and arriving at a social choice
2.
The Failures of Majoritarianism
This leads to the question of whether majoritarianism, and in particular a system of majority votes without judicial review or any other
non-majoritarian institutions, can succeed at treating people with equal
respect. Eisgruber gives several reasons to be skeptical. First, because
47
48
Id. at 25.
Id. at 17. While Dworkin's conception of democracy is an attractive view, the Author
does not believe he gives fair treatment to his opponents in this piece. The alternative theory
that he ascribes to them, which he labels "the majoritarian premise," suggests that "it is a matter
of regret" when courts overrule a majority even in order to let minorities participate in the
political process, and he also opposes any and all campaign finance restrictions. Id. at 17-18.
The intrinsic view that is presented above, on the other hand, recognizes that some procedural
protections may be acceptable and desirable, insofar as they remedy defects in the political process, and thereby reinforce the people's ability to decide for themselves. See supra Part 11.13. The
Author, therefore, thinks that Dworkin is wrong to insist that all of his opponents must take
these potentially troubling positions.
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voters act anonymously, there is strong incentive for people to "cheat"
and vote in accordance with their own self-interest rather than honor
the idea of equal respect.4" Second, even if voters put aside their selfinterest, they know that their own single vote has little significance and
that they need not justify their decision, so there is "very little incentive
[for voters] to take their responsibilities seriously."5
Even if society attempted to implement a system where everyone
voted with equal respect for everyone else's interests, such a system
would not likely be sustainable. Suppose that I find myself in a society
with just two other members, who we might label the Altruist and the
Egoist, and we are voting to set some important societal policy. Suppose further that I choose my position after giving equal concern to the
positions of all three of us, as does the Altruist, but that the Egoist votes
based only on his own interest. The result is that the Egoist gets his
interests counted three times-once each by himself, the Altruist, and
me-whereas the Altruist and me are only counted twice. If I suspect
this is going on, the rational thing for me to do is to disregard the
Egoist's interest when making my own decisions. Suppose then that I
become suspicious of the Altruist, as I would be apt to do if voting were
anonymous or if we were instead part of a very large polity and might
not know each other. This suspicion would lead me to ignore his interests as well, and the system of voting with equal concern would quickly
collapse. And if the Altruist remains true to his name and continues
taking others' interests into account with the same weight as his own, he
is effectively penalized for his good will when he causes others' interests
to be given more total consideration than his own.
This example serves to undermine Waldron's argument as
presented in The Core of the Case Against JudicialReview, which explicitly relies on the assumption of "a commitment on the part of most
members of the society to the idea of individual and minority rights."5 1
Waldron is trying to assume away the need for non-majoritarian institutions, like courts, to enforce equal respect by instead assuming a great
deal of benevolence on behalf of the voters. One might question
whether such an assumption is ever sound. But even if Waldron is
granted the assumption that most voters want to be benevolent, the
above scenario shows that such a commitment is still likely to be unsussupra note 43, at 50.
Id.
Waldron, Against JudicialReview, supra note 1, at 1360.
49 EISGRUBER,
50
51
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tainable in a system where voting is anonymous and in which at least
some voters act like rational agents rather than angels.
The upshot of this discussion is that if the intrinsic view of democracy is rejected, and if the ideal of equal respect that is advanced by
many who hold the instrumental view of democracy is taken seriously,
then unfettered majoritarianism would appear to be a very poor implementation of democracy, leaving substantial room for other institutional
arrangements-perhaps including one with expansive judicial review,
extending to substance as well as procedure-to do better.
D.
Democracy and Delegation
As argued earlier, any theory of democracy that is to be consistent
with current practices must be able to account for delegation of policymaking power to non-majoritarian institutions. The chief example
set forth above was that of an independent central bank, which is now
favored in most sophisticated democracies worldwide (although central
banks are hardly the only political institutions that have been delegated
political authority of this sort).
As it has been presented, the intrinsic view of democracy is unable
to accept the legitimacy of delegation, whereas the instrumental view
can, in theory, endorse institutions like central banks and judicial review. But a critic of the instrumental view might also suggest a third
option-call it the weak intrinsic view-that is similar to the regular
intrinsic view but no longer insists (as Walzer did) that the people's right
to create the laws that bind them is inalienable. Such a view would
permit delegation if the people decide that it is the best way to achieve
some shared goal. 5 2
For present purposes, the critical fact about the weak intrinsic view
is that its implications for the legitimacy of non-majoritarian institu52 The Author suspects that the weak intrinsic view may best capture popular intuitions
about the value of democracy. Consider that the instrumental view could lend support to benevolent dictatorial systems like Singapore's "coercive capitalism," which "ha[s] long yielded
dramatic economic growth." Walter F. Murphy, Alternative Political Systems, in CONSTITUTIONAL POLITICS: ESSAYS ON CONSTITUTION MAKING, MAINTENANCE, AND CHANGE 9, 27
(Sotirios A. Barber & Robert P. George eds., 2001). Dworkin, however, would think this unacceptable because "[diemocracy would be extinguished by any general constitutional change that
gave an oligarchy of unelected experts power to overrule and replace any legislative decision they
thought unwise or unjust." DWORKIN, FREEDOM'S LAW, supra note 3, at 32. If we believe
Singapore's government to be legitimate, then this belief is most consistent with the weak intrinsic view where non-majoritarian institutions arise through delegation.
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tions are indistinguishable from those of the instrumental view. If the
people, who possess the right to decide, can will that a decision be made
by whatever institution knows the right answer, then Walzer's distinction between having the right to decide and knowing the right answer
collapses. The instrumental view of democracy is able to support nonmajoritarian institutions because the intrinsic good which it seeks is best
achieved through those non-majoritarian institutions; the weak intrinsic view is likewise able to support non-majoritarian institutions because
the good which the people seek is best achieved, they believe, through
non-majoritarian institutions. Just as someone holding an instrumental
view of democracy may find expansive judicial review desirable, so too
the people holding a weak intrinsic view may also find expansive judicial
review desirable. The weak intrinsic view of democracy is just as accepting of judicial review as the instrumental view.
This conclusion is the final nail in the coffin for Waldron's (and
Walzer's) argument that judicial review of the law's substance (as compared to judicial review seeking merely to protect political procedure)
should be deemed democratically illegitimate regardless of whether or
not the people believe it would lead to better results. That argument
can only succeed under the pure intrinsic view of democracy, which is
an unacceptable view because it cannot account for delegation, as in the
case of central banks.
It follows, therefore, that strict adherence to the view that democracy should be equated with majoritarian legislatures must be rejected.
Sometimes the people will be justified in adopting institutions that are
non-majoritarian in character if they are convinced that those institutions will lead to better or more just results.
III.
JUDICIAL REVIEW REVISITED
As previously identified, there are two claims underlying Dworkin's thesis that judicial review makes the United States more just.53
The first claim was about the possibility of appealing to some consensus
about just results, and Dworkin's views suggest an instrumental view of
democracy which finds such a consensus in the idea of equal respect.54
Dworkin's second claim is that society is more likely to arrive at good
55
and just results with judicial review than without judicial review.
53 See supra Part I.A.
54 See supra Part II.C.
55 See supra Part I.A.
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Some scholars, such as Mark Tushnet and Larry Kramer, think it is
not.16 The remainder of this Article will sketch out a constructive argument suggesting that people should want judicial review.
A.
Judicial Review under the Instrumental View
Previously, when considering judicial review under the intrinsic
view of democracy, judges were found to be better situated than legislators to consider matters of principle because of their unique institutional
posture. 57 Because judges are appointed with life tenure, they are insulated from momentary political pressures and face a different set of incentives than do legislators, who may seek to write themselves into
office. 58 And because judges face better incentives for policing the political process than do legislators, judges are better situated to fulfill that
duty, despite charges that they are unelected or unaccountable.
Having now abandoned the intrinsic view of democracy, the incentives faced by judges as compared to legislators must be examined
once again to consider whether there may be instances where judges are
better situated to make certain decisions; if so, this would be grounds
for supporting judicial review.
To compare the merits of legislative decision-making and judicial
review, one must first understand Congress's possible shortcomings.
Abner Mikva considers just that in a seminal article entitled How Well
Does Congress Support and Defend the Constitution?9 Mikva served in
Congress for ten years before being appointed as a federal appellate
judge and, having observed both institutions from the inside, he conveys
several doubts about Congress's ability to address complicated issues of
principle.
First, Mikva suggests that Congress is poorly designed for serious
debate. He writes, "both houses are large, making the process of engaging in complex arguments during a floor debate difficult. For the most
part, the speeches made on the floor are designed to get a member's
position on the record rather than to initiate a dialogue. ' 60 Second,
Mikva asserts that legislators are unable to devote much time to consid56
See MARK
TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS
(1999);
(2004).
Supra Part II.B.
58 See id.
59 Abner J. Mikva, How Well Does Congress Support and Defend the Constitution?, 61 N.C. L.
REv. 587 (1982).
60 Id. at 609.
LARRY KRAMER, THE PEOPLE THEMSELVES
57
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DEMOCRACY AND JUDICIAL REVIEW
419
ering most bills because of the immense volume of legislation passing
through Congress. 61 Third, Mikva believes that legislators are often uninformed about issues of constitutional principles, leaving them "almost
totally dependent on the recommendations of others in making constitutional judgments. '"62
Finally, Mikva suggests that legislators are more devoted to shortterm political pressures than to serious matters of principle and good
policy. He asserts rather broadly that "[o]n the matter of constitutionality, the [floor] debates, to the extent they took place, are filled with self63
serving conclusory congressional discussion ....
As an example, Mikva quotes one Congressman as complaining
that "[it is hard to vote against a bill which states in its title that it seeks
to control organized crime." 64 Congress may be the body that is most
directly tied to the will of the people, but, Mikva suggests, it can sometimes still do a poor job of representing them, particularly when called
upon to reflect considered judgments on matters of principle.
In comparison, a judge's life tenure and her corresponding insulation from momentary political pressures gives reason for one to think
that judges may be better decision-makers when faced with matters of
principle. For example, one may as a considered judgment hold the
principle that free speech should be protected, yet might also find oneself disinclined to adhere to that principle at a particular moment when
encountering disfavored speech. This scenario is analogous to the commitment problem that was solved by creation of the independent central
bank, where the overriding interest in keeping inflation down in the
long term and the often short-term political pressure to expand the
money supply was resolved by depoliticizing decision-making through
creation of a politically insulated institution. Mikva's article suggests
that Congress may be particularly poor at holding firm to matters of
political principle, in which case the best course of action might be to
enshrine these as constitutional principles and entrust them to the protection of the judiciary.
Id.
Id.
63 Id. at 600.
64 Id. at 603.
61
62
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The Importance of Written Opinions to
Judicial Decision-Making
Going beyond the issue of political insulation, however, it can be
argued that many scholars have neglected the tremendous importance of
the requirement that judges issue written opinions in every case. Constructing these written opinions demands three traits that society either
does not expect or cannot guarantee from legislators: consistency, appeal
to public reasons, and engagement with counterarguments and dissents.
First, a judge's opinions are expected to be consistent. While an
accusation of "flip-flopping" may do minor harm to a legislator's reputation, these charges are common and often do little to impede a seasoned legislator's chance of reelection. On the other hand, if a judge
were to engage in "flip-flopping" in a series of inconsistent opinions, it
would be considered a serious and troubling development, perhaps worthy of impeachment. Legislators also can often get away with subtle
inconsistencies, such as voting both for tax cuts and for increased spending on social programs, justifying each on narrow grounds (if at all). By
contrast, judges are often expected to give much more expansive and
detailed explanations of their reasoning. Over time they are generally
expected to be able to fit their opinions into a larger interpretive framework or constitutional philosophy, and so even subtle inconsistencies are
unlikely to go unnoticed or unchallenged.
Second, judicial opinions are expected to appeal to public reasons
and common values. As seen in the above discussion of deliberative
democracy, 65 this protection prevents judges from basing their decisions
on a variety of factors that would be inconsistent with equal respect for
persons, such as an unjustified preference for one section of the population over another. Legislators, on the other hand, are generally subject
to no such demands on the vast majority of votes they cast.
Third, judicial decisions are expected to make some concerted effort to engage counterargumentsand dissents. At the appellate level, each
case is assigned to a panel of several judges, and a dissenting opinion will
force those in the majority to give its arguments serious consideration.
Even without a dissenting opinion, however, the thorough opinions expected from judges will generally need to address at least the most obvious objections that might be raised against their reasoning. In
legislatures, on the other hand, Mikva suggests that such debates are rare
65
See supra Part II.C.
DEMOCRACYAND JUDICIAL REVIEW
2008]
and largely inadequate.66 Legislatures may have too many members and
too little time to have a thorough debate on all sides of an issue, or a
legislator may find that the best way to win support for reelection is to
make an impassioned appeal to his base and to simply ignore the other
side.
2.
The Institutional Incentives of Judges and Legislators
For each of the requirements just mentioned, it is possible to imagine a similar explanation being demanded of a legislator by an electionyear challenger or by aggrieved constituents. However, such demands
for explanation from legislators are comparatively very rare, and their
responses will, in all likelihood, be much less thorough than a judicial
opinion. Furthermore, legislators may feel less pressure to provide satisfactory answers to these challenges because voters may be more concerned with the positions a legislator takes than the reasoning behind
them. For judges, on the other hand, expectations may be focused more
on demands for the quality of their reasoning, rather than on the positions they end up taking. In any case, insofar as one might expect legislators to satisfy these three demands, they are challenged to do so only
sparingly. For judges, however, the requirement of a written opinion is
a guarantee that they must engage in thorough and rigorous deliberation
over the issues in each and every case they hear, and the hope is that the
stringency of these demands will result in judges making better decisions
on difficult, abstract questions than legislators do.
Even Walzer-who has been presented as a vigorous opponent of
judges having the authority to make decisions contrary to those of
majoritarian legislatures-seems to acknowledge the value of the thorough and rigorous deliberation that is expected of judges:
[Judges'] special role in the democratic community is connected.., to
their thoughtfulness, and thoughtfulness is a philosophical posture. . . .For the discussions of judges among themselves really do
resemble the arguments that go on in . . . the mind of the philosopher ... much more closely than democratic debate can ever do. And
it seems plausible to say that rights are more likely to be defined correctly in the reflection of the few than in the votes of the many.67
66 Mikva, supra note 59, at 609.
67 Walzer, supra note 15, at 390 (emphasis added).
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[6
Walzer does not present this as an argument in favor of judicial review.
As expressed above,6 8 he believes majoritarianism to be important despite
the fact that it may not always yield the best or correct decisions. Yet, if
one instead believes that democracy is furthered by a 'correct' understanding of rights and equal respect, Wazer's point is important: while
judges may be few in number, the careful reflection, deliberation, and
justification that their office demands of them may, in certain decisions,
yield better judgments than the whims of the masses, which may at
times make inconsistent, impossible, or ill-considered demands.
The position argued for here should not be confused with the idea
of rule by elites.6 9 The argument is not that judges are smarter or more
talented than other citizens. Rather, the important fact is that judges
must and do engage in a very special type of rigorous discourse. It may
be that this discourse demands some level of intellectual sophistication,
but this constraint hardly requires that as the selection of judges must
favor those who are more educated or from an elite background, so long
as all candidates demonstrate a sufficient ability to present and defend
their arguments soundly. The effect is not to favor elites' views over
others, but rather to favor sound views over unsound views. What qualifies judges as being particularly well-situated to decide difficult, abstract
questions is simply that they do, by requirement of their office, produce
a thorough and rigorous justification for every decision they make, a
process which legislators and voters need not regularly engage in
themselves.
B.
Fears about Judicial Review
At this point one might raise three distinct concerns which question whether the results of judicial review would really be so desirable.
The first is a variation on the concern about rule by elites, the second is
a concern about the possibility of error, and the third is a fear about
abuse of power.
68
69
See supra Part II.A.
Consider, for instance, the charge posed by Eisgruber:
Democratic principles .. preclude us, for example, from saying that judges are especially good at identifying moral and political principles because they are smarter than
ordinary Americans. We cannot say that we believe in 'government by the people' if
we think the people are too dense to make their own judgments about fundamental
issues of political justice. In effect, democracy requires us to assume a parity of basic
moral judgment.
EISGRUBER, supra note 43, at 57.
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First, one might be concerned that even if an elite background is
not in theory necessary for a judicial appointment, and even if better
education or social status play no role in the justification for judicial
review, politicians still might primarily nominate educated elites and fill
a powerful judiciary with individuals who are out of touch with most
voters' concerns. Yet is it reasonable to think that many judicial nominees could be out-of-touch elites? Walzer argues otherwise:
One can imagine a philosopher-judge, but the union is uncommon.
Judges are in an important sense members of the political community.
Most of them have had careers as officeholders, or political activists, or
as advocates of this or that public policy. . . .When they are questioned at their confirmation hearings, they are presumed to have opinions of roughly the same sort as their questioners-commonplace
opinions, much of the time, else they would never have been
7
nominated. 1
If anything, this reasoning suggests that there is little to fear from
judges, because they must be both nominated and confirmed by a political process. Far from being out-of-touch elites, they instead are likely to
have views that quite closely resemble those of the prevailing political
regime.
The second possible concern is that bad rulings made by judges are
much harder to overturn and correct than bad policies enacted by legislatures. In response, it is important to first recall that the primary reason this Article advocates for judicial review is because on some matters
judges may be less likely to make bad decisions than legislatures; that is,
while the source of errors may shift from legislatures to judges, they will
also be fewer in number. That being said, if one considers subtle mistakes in addition to obvious ones, it is not at all clear that judicial mistakes are harder to correct. Clever legislators can market policies in
deceptive ways-for instance, the estate tax is referred to as the "death
tax" by those on the right and the "inheritance tax" by those on the
left-such that voters are led to unwittingly support policies that run
contrary to their own interests, and this deception can easily continue
undetected by the voters. On the other hand, because judges must issue
written decisions, and "[Itlhrough law journals, newspapers, political
committees, and professional associations, Americans watch judges
70 Walzer, supra note 15, at 388.
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[
closely," their mistakes are unlikely to go unnoticed. 7 1 If another court
does not soon acknowledge the mistake and overrule the decision, then
the opinion will still be open to criticism by legal scholars as well as by
the next generation of lawyers and judges, and thus no unsound or illreasoned ruling is likely to remain in effect for too long.
The third potential concern is that if judges are given the tremendous power of judicial review, they will be tempted to overstep their
authority by ruling on issues that are more appropriately placed before
legislatures, or by substituting their own moral judgments for those of
the nation. A restriction on judicial supremacy of this sort can, however, be found in the use of a written constitution, which has been given
little attention in this Article thus far. Dworkin identifies "two important restraints that sharply limit the latitude the moral reading gives to
individual judges." 72 First, judges are constrained by the text of the
constitution: they may rule only on controversies about moral issues
that are contained in the Constitution, 73 and so federal judges will not
be able to step into such policy areas as, say, dictating the content of
public school curricula. Second, judges are constrained by the country's
traditional and historical understanding of what the Constitution's
moral language might call for.74 Because of this limitation, "[e]ven a
judge who believes that abstract justice requires economic equality cannot interpret the equal protection clause as making equality of wealth,
or collective ownership of productive resources, a constitutional requirement, because that interpretation simply does not fit American history
or practice, or the rest of the Constitution." 75 These two restrictions, as
Dworkin poses them, are rather abstract, and there might be several
different ways to understand them; the more favorable understanding is
the one that best balances the advantages of judicial review against the
danger of judicial overreach.
These constraints of text and history, however, do a poor job of
tracking the argument for judicial review that has been presented here,
which calls for an additional restriction: judges should consider overruling
a legislative decision only when they can confidently assert that their unique
institutionalposturegives them better incentives and makes them better situ71
EISGRUBER, supra note 43, at 59.
72 DWORKIN, FREEDOM'S LAW, supra
73 Id.
74 Id. at 10-11.
75 Id. at 11.
note 3, at 10.
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ated than the legislature to identify the demands of the moral principle at
stake. Thus, it is crucial to select judges who have the modesty and
humility to refrain from striking down a law, even one which they think
is a very bad and ill-conceived law, if the legislature is better qualified to
judge the merits of that law than judges are. 76 This call for judicial
modesty is not lost on Dworkin, who similarly argues:
Nor does it follow, when courts have power to enforce some constitutional rights, that they have power to enforce them all. Some imaginative American constitutional lawyers argue, for example, that the
power of the federal courts to declare the acts of other institutions
invalid because unconstitutional is limited: they have power to enforce
many of the rights, principles, and standards the Constitution creates,
77
on this view, but not all of them.
One might still be skeptical that such modest and humble judges,
who can see a policy which they personally believe to be inconsistent
with constitutional principle yet decline to intervene out of respect for
legislative institutions, can really exist. If so, however, one must likewise
be skeptical about the possibility of modest legislators, or of legislators
chosen by modest voters, who will sometimes put aside their own interests out of equal respect and concern for others. Finding a few modest
judges is a comparatively easy task when considering the alternative of
abolishing judicial review and hoping for modesty from millions of people voting anonymously.
C. Judges as Constructive Experts
When the idea of an independent central bank was introduced as
an example of how non-majoritarian institutions can sometimes have
great value, this Article identified two key considerations that make a
central bank desirable: first, central banks are generally run by people
who have special knowledge and expertise that make them better suited
to guide monetary policy; and second, central banks are isolated from
momentary political pressures and thus face better incentives for making
the best decisions. So far, this Article's defense of judicial review has
been based entirely on considerations of the second sort, focusing on
76 This point has previously been made by Michael W. McConnell, The Importance of
Humility in JudicialReview: A Comment on Ronald Dworkin's "MoralReading" of the Constitution, 65 FoRDHAm L. REv. 1269 (1997).
77 DWORKIN, FREEDOM'S LAW, supra note 3, at 34.
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judges' unique institutional posture. It has not attempted to defend
judicial review on the grounds that judges are more knowledgeable, or
that they possess some sort of substantive expertise, because it is not at
all apparent that this is actually the case under current American practice. Judicial nominations in the United States are a highly politicized
process, and there is little reason to believe that the legal expertise that is
expected of judicial nominees is of any help in resolving the controversial moral questions that often arise before them.
On a theoretical level, however, the possibility that judicial review
could be defended on the grounds of judges' substantive expertise
should not be ruled out. Suppose that at some point a vague social
consensus began to arise about what sorts of individuals might be particularly adept at thinking through and resolving conflicts of rights in a
wise and thoughtful manner-and surely there is room for some consensus on what sorts of temperament, training, and experience make for
better judges-and suppose that the judicial appointment process
evolved in such a way as to favor these individuals as candidates for the
bench. If it were commonly understood by all involved in the judicial
appointments process that they were seeking to select the candidates
who are most knowledgeable and most gifted at arbitrating over these
moral disputes, then judges would indeed be able to claim some added
legitimacy by virtue of their perceived expertise; in essence, the judicial
appointment process would then allow judges to be treated as constructive experts with regard to matters that legislatures choose to leave
unresolved.
In one important respect, it might be thought that current American practice already treats judges in this way. Disputes often arise before
judges because a law is vague or ambiguous in some respect, and not all
of these ambiguities are accidental. A group of legislators may sometimes agree on a particular policy in the abstract, but each for very different reasons, leading them to pass a broad law despite widespread
disagreement about how it should be interpreted in specific circumstances; or legislators might find it politically advantageous to leave parts
of a bill vague rather than to take a controversial political stance. In
cases such as these, legislators may be fully aware that the ambiguities
will need to be resolved by the courts, and they are likely to have those
sorts of situations in mind when considering judicial appointments.
Such an arrangement would be analogous to treating judges as experts:
in the judicial appointments process, legislators choose the individuals
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who they think would be best-that is, "experts"-at resolving these
issues; then, when in the course of legislation, those legislators find an
issue that they are unwilling or unable to resolve, they leave it as an open
question to be settled by the judges whose expertise was affirmed by the
approval of their nominations.
D.
The "ConstitutionalCanon" as a Guide to
Result-Driven InstitutionalDesign
Given the abstract arguments for judicial review and the speculative concerns about judicial supremacy, how should a democratic citizen
decide whether or not to support the establishment of judicial review?
In defending the moral reading against possible alternatives, the first
case Dworkin discusses is Brown v. Board of Education,78 a case of central importance to modern multicultural democracies. Cass Sunstein
has argued that "an approach to Constitutional Interpretation is unac79
ceptable if it entails the incorrectness of Brown v. Board of Education."
The argument could be taken a step further to say not only that justice
requires that the people think Brown was decided correctly, but that
they must also think it was decided correctlyfor the right reason. That is,
racial segregation in public schools is wrong not merely because it affects
education in a way that is detrimental to the political process-the Court
was not concerned merely that without equal education blacks might be
ill-informed voters-but because it violates American moral beliefs
about the substantive right to equal respect to which each person is
entitled.
Jack Balkin and Sanford Levinson seem to agree with Sunstein, and
have identified several cases of this sort that might be considered part of
a "constitutional canon."' 80 One could articulate many different constitutional canons, each with a different purpose, but the present concern
is with those cases that are widely recognized by the public as having
been rightly or wrongly decided. This canon is reflected by the set of
commitments the public demands Supreme Court nominees to adhere
to: Brown must be correct; Lochner8 must be wrong; Korematsu8 2 and
78
347 U.S. 483 (1954).
Cass R. Sunstein, In Defense of Liberal Education, 43 J. LEGAL EDUC. 22, 26 (1993).
80 J. M. Balkin and Sanford Levinson, The Canons of ConstitutionalLaw, II HARV. L. REV.
79
964 (1997).
81 Lochner v. New York, 198 U.S. 45 (1905).
82 Korematsu v. United States, 324 U.S. 214 (1944).
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Dred Scott 3 must be wrong; and, more recently, there is growing consensus that Griswold 4 must be correct.8 5
When a citizen must decide whether to favor judicial review, she
should consider this constitutional canon.8 6 Judicial review creates more
just results by intervening in cases such as Brown, and the limited form
of judicial review which is advocated in this Article-where judges are
to refrain from interference in legislative decisions except in the rare
circumstances where their special institutional posture makes them
uniquely qualified to intervene-could also yield the desired results in
cases like Korematsu and Dred Scott, or at least would leave the state of
the law no worse off than if the system did not allow judicial review at
all. Faced with the normative question of whether judicial review is
desirable, this Article urges people to agree with Dworkin that a society
with a judicially enforced constitution would in all likelihood create
more just policies than one in which rights are left, as Waldron would
have them, to the conscience of majoritarian legislatures.
CONCLUSION
Is judicial review inconsistent with democracy? It all depends on
one's view of "democracy." To support Dworkin's contention that they
are compatible, Waldron charges, one "must therefore show that in
83
84
85
Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856).
Griswold v. Connecticut, 381 U.S. 479 (1965).
It has been suggested that Robert Bork's rejection of Griswold played a large role in the
defeat of his nomination. See, e.g., TUSHNET, supra note 56, at 65; Tamar Lewin, The Bork
Hearings: Bork is Assailed Over Remarks on Contraception, N.Y. TIMES, Sept. 19, 1987, at 10;
Robert P. George & David L. Tubbs, The Bad Decision that Started it All: Griswold at 40, NAT'L
REV., Jul. 18, 2005, at 39. Both John Roberts and Samuel Alito affirmed their acceptance of
Griswold during their respective confirmation hearings. Hearings on the Nomination of John
Roberts to be ChiefJustice of the United States (questioning by Sen. Schumer) (Sept. 13, 2005)
(Roberts affirming that Griswold is "on the same plane as a precedent as Marbury v. Madison and
Brown v. Board of Education"), available at http://www.washingtonpost.com/wp-dyn/content/
article/2005/09/13/AR2005091301981 .html; Hearings on the Nomination of Samuel A. Alito to
be Associate Justice of the United States (questioning by Sen. Specter) (Jan. 10, 2006) (A]ito affirming that he "accept[s] the basic legal principles" in Griswold), available at http://www.washingtonpost.com/wpdyn/content/article/2006/01 /
I0/AR2006011000781 .html.
86 On this point the Author disagrees strongly with Waldron, who "want[s] to... identify a
core argument against judicial review that is independent of ... questions about its particular
effects-the decisions (good and bad) that it has yielded ...." Waldron, AgainstJudicial Review, supra note 1, at 1351. Since this Article rejects the intrinsic view of democracy required to
sustain Waldron's argument against judicial review, one is left with no choice but to evaluate
judicial review based on its prospective effects. Waldron's failure inevitably leads to a resultsbased theory such as Dworkin's moral reading.
2008]
DEMOCRACY AND JUDICIAL REVIEW
some circumstances judicial review of legislation does not detract at all
from, and maybe even enhances, the democratic character of the political system of which it is a part,"8 7 and that is exactly what this Article
has shown. By rejecting the intrinsic view of democracy and adopting
an instrumental view based on equal respect, judicial review should be
seen not only as democratically legitimate but in fact as potentially democracy-reinforcing. Moreover, this Article has offered a constructive
argument suggesting that judges' unique institutional posture may make
them better suited than legislatures for deliberating on certain matters of
principle. If the people consider this argument and find it to be correct,
then their democratic government has much to gain from adopting a
system of judicial review.
87 WALDRON, LAW AND DISAGREEMENT,
supra note 6, at 288-89.