Judicial Review and Contemporary Democratic Theory

Power, Domination, and the Courts

Scott E. Lemieux, David J. Watkins

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9781138095199
• eBook ISBN: 9781351602129
• Topic: Politics & International Relations
• Subtopic: Public Law
• Index: Politics & International Relations

For decades, the question of judicial review's status in a democratic political system has been adjudicated through the framework of what Alexander Bickel labeled "the counter-majoritarian difficulty." That is, the idea that judicial review is particularly problematic for democracy because it opposes the will of the majority.

Judicial Review and Contemporary Democratic Theory begins with an assessment of the empirical and theoretical flaws of this framework, and an account of the ways in which this framework has hindered meaningful investigation into judicial review's value within a democratic political system. To replace the counter-majoritarian difficulty framework, Scott E. Lemieux and David J. Watkins draw on recent work in democratic theory emphasizing democracy's opposition to domination and analyses of constitutional court cases in the United States, Canada, and elsewhere to examine judicial review in its institutional and political context.

Developing democratic criteria for veto points in a democratic system and comparing them to each other against these criteria, Lemieux and Watkins yield fresh insights into judicial review's democratic value. This book is essential reading for students of law and courts, judicial politics, legal theory and constitutional law.

Part I

1
Beyond the Countermajoritarian Difficulty

1.1 Introduction: The Difficulty with the Countermajoritarian Assumption

The landmark decisions of the Warren Court provoked a crisis within American legal theory. Liberal legal scholars generally found the substantive outcomes of landmark Warren Court decisions desirable in policy terms, but had more difficulty in defending them as acceptable exercises of judicial power according to traditional theories of how judicial power should be exercised.¹ What they perceived as poor legal reasoning was particularly troubling to them because they even saw principled legal reasoning as presenting serious problems for American democracy. Alexander Bickel, whose work was enormously influential within these debates, famously stated the problem this way: “The root difficulty is that judicial review is a countermajoritarian force in our system … when the Supreme Court declares unconstitutional a legislative act or the action of an elected executive, it thwarts the will of representatives of the actual people of the here and now; it exercises control, not in behalf of the prevailing majority, but against it. That, without mystic overtones, is what actually happens.”² While democracy was admittedly more complex than town-hall plebiscitarianism, “none of these complexities can alter the essential reality that judicial review is a deviant institution in the American democracy.”³ Bickel’s articulation of the “countermajoritarian difficulty” was not a new development in legal theory,⁴ but distilled and formalized a set of longstanding worries among legal scholars in a way that was enormously influential, and became a major part of the way in which constitutional theorists evaluated the Warren Court.⁵ Theorists assessing the legitimacy of judicial review have frequently started from the assumption that judicial review is “countermajoritarian,” and therefore presumptively at odds with democracy. The question, then, is whether or not judicial review could nonetheless be democratically legitimate, at least if practiced or constituted in a particular way.

We argue that a useful analysis of the democratic status of judicial review must abandon the “countermajoritarian difficulty” as an underlying premise. The assumption that judicial review is “countermajoritarian” and, therefore, a “deviant” institution is critically flawed in two critical respects. First, Bickel’s framework is often not an accurate empirical description of the nature of judicial power, and its corollary assumption that the political branches represent popular majorities has similar empirical problems. Second, even if the description of courts as inherently “countermajoritarian” was accurate, this does not necessarily present the normative difficulties claimed by Bickel and his adherents. All liberal democratic systems have significant “countermajoritarian” elements (including within the political branches themselves), and few would argue that all of these mechanisms are necessarily “deviant.” Yet few legal scholars write anguished papers about the deviant nature of the Senate, congressional committees, or the Federal Reserve.⁶ For judicial review’s democratic status to be meaningfully assessed, a more nuanced, comparative perspective is required.

Although the difficulty asserted by Bickel is often used as a starting point to attack judicial review (or at least some particular manifestation of judicial review), this argument can be turned on its head. The most common way of solving the “countermajoritarian difficulty” is to turn this alleged vice into a virtue: the countermajoritarian nature of the courts is a good thing. Courts are uniquely well-situated to protect the rights of individuals or disadvantaged groups against an excessively powerful majority. Judicial review, on this more positive account, is not a “deviant” institution but one that upholds fundamental democratic values. And, of course, Bickel himself concluded that judicial review could be legitimated because the courts could serve as a forum of principle and reason that would inject higher constitutional values into the interest aggregation and horse-trading of legislative politics.

Whether framed in positive or negative terms, however, theoretical assessments of judicial review that start from the premise that the courts are countermajoritarian all make the same mistake of treating institutions as engaged in zero-sum struggles for power. It is assumed that when courts exercise judicial review, they are contravening the will of the political branches and, therefore, by extension, the will of the majority. While sometimes useful, this underlying assumption also distorts many aspects of the practice of judicial review. We argue, based on a growing literature in political science, that the courts are often the accomplices of political actors, rather than being at loggerheads with them. Judicial review tends more often than not to represent the values of the governing coalition. We maintain that any theoretical assessment of judicial review must take this into account.

To question the usefulness of the “countermajoritarian difficulty” as a way of conceptualizing the legitimacy of judicial power is not, however, to say that judicial review (and other forms of judicial policy-making) is normatively unproblematic. A relational model of interbranch dynamics raises significant concerns about judicial policy-making: the inapplicability of the countermajoritarian difficulty cuts both ways. If courts are unlikely to successfully usurp legislative prerogatives on a consistent basis, they are also likely to be unreliable protectors of the rights of oppressed minorities. Using a more sophisticated analysis of interbranch relations also reveals additional potential problems with judicial review from a democratic standpoint, such as the evasion of legislative responsibility and the potentially distorting effects of “dialogues” between legislatures and courts.

Ultimately, then, the democratic legitimacy of courts depends entirely on the democratic theory being advocated. As we will argue in detail in the next section, conflating “democracy” with “majoritarianism” and “majoritarianism” with the political branches of government is not a productive starting point. But while it is necessary to go beyond a simplistic majoritarianism that virtually nobody would defend outside of the context of analyzing judicial review, each alternative democratic theory raises particular questions about it. To use the broad categories of democratic theory described by Ian Shapiro, judicial review has different potential strengths and weaknesses depending on whether one conceives of democracy in terms of republican self-governance, deliberative democracy, or democracy as a means of minimizing domination.⁷

This chapter will use recent developments in democratic theory to clarify some important questions about the democratic legitimacy of judicial review. First, we will explain in more detail why the “countermajoritarian difficulty” does not ask the right questions about judicial review. Second, we will explain how contemporary democratic theory can inform evaluations of the relationship between judicial review and democracy through its attention to the specific relationships between the normative point of democracy and its institutional manifestation in democratic theory. We will focus on democracy as a means of minimizing domination, as we find this approach provides both the most normatively useful and most realistic framework for assessing the democratic legitimacy of judicial review. Rather than attempting to assess how judicial review might function in a theoretical polity of equal citizens carefully deliberating about issues of public policy, for example, it is important to evaluate judicial review within actually existing institutional contexts. The fact that the “countermajoritarian difficulty” does not provide a good basis for critiquing judicial review, however, does not guarantee its democratic value: we must also question whether or not judicial review can actually be expected to reduce domination. From a democracy-against-domination perspective, we argue—with certain caveats—that judicial review can play a positive role, and should not be considered inherently undemocratic.

This chapter will introduce and preview many of the arguments developed further in the rest of this book. The next two sections will lay out the empirical and theoretical flaws in the “countermajoritarian difficulty” framework for assessing judicial review, respectively. Rejecting it on theoretical grounds requires rethinking the relationship between majoritarianism and democracy. From there, the remainder of this chapter is occupied with four tasks. Once we recognize that democracy and majoritarianism cannot be easily conflated, we must look to democratic theory for alternatives. In section 1.4, we reject one alternative to majoritarianism, deliberative democracy, and focus on a more attractive alternative amenable to our realist institutional approach. We examine some recent work in democratic theory that emphasizes the opposing domination as democracy’s central point to demonstrate this approach’s strengths and weaknesses. Although the theorists we discuss consider the implications of their democratic theories for judicial review, they fail to consider much of what is known about judicial review in practice. We then return to a discussion of some empirical literature on judicial review in a comparative context to better consider how, and to what extent, judicial review might be valuable from the perspective of democracy-against-domination. Section 1.6 briefly notes that from an anti-domination perspective, the oft-neglected distinction between different kinds of judicial review—specifically, the difference between review of legislative and executive/administrative actors—should not be ignored. We close with an examination of how this discussion might shed a different and more productive light on the democratic status of judicial review than the “countermajoritarian difficulty” framework, and conclude with a preliminary account of some of the implications of this approach to democracy for judicial review.

1.2 Why the “Countermajoritarian Difficulty” Framework Is Inadequate as a Standard of Democratic Legitimacy

We contend that normative assessments of judicial review should examine the institution in practice; as a result, it is useful to briefly outline the normative and empirical problems with Bickel’s framework. His formulation of the problem, unfortunately, is “so weakly grounded empirically” that it obstructs, rather than illuminates, consideration about the democratic legitimacy of judicial review.⁸ In particular, it is important to avoid the rigged contests that are common when evaluating judicial review: critics of judicial review comparing legislatures passing legislation resulting from the constructive deliberation of knowledgeable citizens versus an entirely unaccountable (and disproportionately old and affluent) small group of lawyers, or supporters of judicial review comparing crude interest aggregators with no interest in constitutional values in the political branches with judicial “forums of principle.” The central empirical problem with the “countermajoritarian” framework is twofold: it overstates the countermajoritarian nature of courts as well as the majoritarian nature of legislatures.

Majoritarian Courts

Several political scientists have shown that courts tend to be closely tethered to the dominant political factions at any given time.⁹ In the 20th century, this became a commonplace and ordinary part of the case for the court’s legitimacy.¹⁰ Even the decisions that are often the primary subject of controversies about “countermajoritarian” courts are better described as reflecting majority preferences, or at least the preferences of some powerful members of governing majorities. Powe’s excellent study demonstrates that the Warren Court, despite often being used as a symbol of countermajoritarian judicial activism, was in fact v...

Table of contents

• Cover
• Title
• Copyright
• CONTENTS
• Acknowledgments
• Introduction
• PART I
• PART II
• Index