IS JUDICIAL REVIEW COMPATIBLE WITH DEMOCRACY? · is judicial review compatible with democracy?...

IS JUDICIAL REVIEW COMPATIBLEWITH DEMOCRACY?

Scott M Noveck*

INTRODUCTION

Jeremy Waldron's recent restatement of his arguments against judi-cial review is the latest salvo in a long-running feud with Ronald Dwor-kin over judicial review's democratic legitimacy.' This Article revisitsthat debate and deconstructs their arguments to shed new light on thecore of their dispute. In doing so, it takes up three questions about thepotential role for judicial review in a democratic government. First, cana non-majoritarian institution like judicial review ever be a legitimatepart of democratic government? Second, if there is no theoretical in-compatibility between democracy and judicial review, should membersof a democratic society desire to establish an institution like judicial re-view? Third, given the answers to the first two questions, what formshould judicial review take, and how is it to be balanced against legisla-tive decision-making?

The Article will begin by considering Dworkin's result-driven ar-gument for judicial review and Waldron's procedure-based critique, andwill show that upon close examination this critique proves to be un-sound. With that aside, it will then examine Dworkin and Waldron'sdispute over judicial review's democratic legitimacy. This dispute isgrounded in their very different views about what the nature of "democ-racy" is, which shall be labeled, respectively, the "intrinsic view" and the"instrumental view." After showing that certain forms of limited judi-cial review may be legitimate even on Waldron's own intrinsic view ofdemocracy, it will then compare Waldron's view to Dworkin's instru-mental 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 earlierversion of this Article was presented at a seminar on Philosophy of Law at Princeton Universityin May 2006. The Author would like to thank Robert P. George, Dennis Patterson, and theother seminar participants for their comments and suggestions. This Article benefited greatlyduring 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 theirdedication and assistance.

I Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L.J. 1346 (2006)

[hereinafter Waldron, Against Judicial Review].

402 CARDOZO PUB. LAW, POLICY & ETHICS J.

unable to accept the delegation of authority to independent institutionsthat may be of great social value, such as independent central banks forsetting monetary policy. The instrumental view of democracy, on theother hand, offers a much greater scope for judicial review. Under thisframework, the Article briefly sketches a constructive argument for judi-cial review based on the judiciary's unique institutional posture, particu-larly the requirement that courts issue a written opinion justifying eachdecision. Finally, the Article will address the standard by which mem-bers of a democratic society should evaluate these arguments, and con-clude that judicial review is a democratically legitimate and distinctlyvaluable social institution.

I. DESIGNING "DEMOCRATIC" INSTITUTIONS:

THE MAJORITARIAN PARADOX

A. Dworkin's Result-Driven Standard

Ronald Dworkin argues that judicial review makes for good gov-ernment because it can lead to some measure of better or "more just"results. In particular, Dworkin asserts that "[t]he United States is amore just society [because it has a judicially enforced constitution] thanit would have been had its constitutional rights been left to the con-science of majoritarian institutions."'2 This thesis, in turn, relies on twolesser claims: first, a presumption that there is some shared conceptionof justice that people can appeal to in making this assessment; and sec-ond, a counterfactual claim about how the United States would havebeen in the absence of judicial review. For now, the correctness of thesetwo claims can be assumed, but they will be revisited shortly.

What does this thesis imply about how courts should resolve con-stitutional controversies that involve moral questions? Dworkin an-swers, "I see no alternative but to use a result-driven rather than aprocedure-driven standard for deciding them."' 3 Indeed, for Dworkin,procedure-driven standards should themselves be evaluated by their ex-pected results: "The best institutional structure"-that is, the best gov-erning procedure-"is the one best calculated to produce the bestanswers . . . ." This focus on results leads to the theory of interpreta-tion 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'SLAw].

4 Id.

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judges in particular) should "interpret and apply [the Constitution's]abstract clauses on the understanding that they invoke moral principlesabout political decency and justice."5 It follows from this theory thatthe correct interpretation of the Constitution's abstract clauses is theone which, according to these moral principles, achieves the best results.The moral principles to be applied are not necessarily those of the judgehimself, which would open Dworkin to a charge of judicial supremacy,but rather those principles most consistent with the nation's history andtraditions.

B. Waldron's Procedural Critique

Waldron attacks the first of the two claims underlying Dworkin'sthesis identified above: that is, the claim that there exists some sharedconception of justice, and the results that it demands, to which a courtcan appeal. The result-driven standard advocated by Dworkin can onlyfunction if there is consensus about which results are correct. But asWaldron notes, "[we] disagree about what would count as the right re-sults," so a further standard is needed-call it a "meta-standard"-foridentifying the "correct" results. 6 This meta-standard must be a proce-dure-driven standard, for if it is a result-driven standard, a "meta-meta-standard" would be necessary for identifying criteria to judge that stan-dard, ad infinitum. Waldron thus concludes that "we cannot use a re-sults-driven test, because we disagree about which results should count,"and, "[i]t looks as though it is disagreement all the way down." 7

At some point, there must be a procedure-driven standard, whichWaldron thinks should be some form of majoritarianism, since "[i]f aquestion comes up for political decision in a community, a member ofthe community might reasonably ask to participate in it on equal termswith his fellow citizens."' Waldron therefore rejects Dworkin's defenseof judicial review, and calls instead for political issues to be decided byelected representatives in legislatures.

5 Id. at 2.6 JEREMY WALDRON, LAW AND DISAGREEMENT 294 (1999) [hereinafter WALDRON, LAW

AND DISAGREEMENT].

7 Id. at 295.8 Id. at 293.

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C. The Majoritarian Paradox

The last part of Waldron's argument is not sound. One can agreewith 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 op-tion. But sometimes people might think themselves better off with aprocedure that gives some more say than others. For instance, in somecases they might recognize certain people to be more knowledgeableabout an issue and to possess a special expertise that makes them betterqualified to decide that issue. In other cases, they might think thatsome people have better incentives to reach the right judgment on aparticular issue, and therefore their opinions might be considered morereliable.

Consider the example of an independent central bank for settingmonetary policy. Considerations of both expertise and incentives favordecisions by a central bank rather than by legislatures. Good monetarypolicy requires a sophisticated understanding of different models of eco-nomic activity and advanced statistical methods; it would be wise toleave 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 atodds with long-term goals. Keeping inflation low often requires a tight-ening of monetary policy, which causes an economic contraction andincreases in unemployment-consequences that are politically unpalat-able. 9 When the principle of keeping inflation low is at odds with incen-tives faced by legislatures, society is better off with monetary policycontrolled by an independent, non-majoritarian body.

Waldron begs the question against non-majoritarian institutions byprivileging majoritarianism at a premature stage in his argument. It isnot obvious from his argument why unfettered legislative decision-mak-ing should necessarily be preferred to procedures that give more weightto those better situated to decide an issue. Waldron makes the pointthat when disagreement goes "all the way down," it reaches a pointwhere 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 thetradeoff between inflation and unemployment); ROBERT H. FRANK & BENJAMIN S. BERNANKE,

PRINCIPLES OF MACROECONOMICS 421 (3d ed. 2007) (explaining how inflation control mea-sures reduce economic output).

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proceed.' ° But the argument hasn't reached that point yet; there maystill be good reason to favor non-majoritarian institutions, and oneshould not make a presumption in favor of legislatures before consider-ing whether there might be reason to choose otherwise.

Thus, one needs a procedure for deciding which political proce-dures or institutions to establish. At this stage, the question takes on acircular form and, at first, it may be appropriate to resort to a majorityvote. 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 forresolving it. In such a situation, there are several virtues to a majorityvote: one might think it important that everyone share responsibility fortheir collective fate, or that the default procedure should be one thattreats every person as an equal, or that bigger groups are better at deci-sion-making than smaller groups.

But it is crucial to see that a majority vote about political proce-dures and institutions might not always choose majoritarian proceduresand institutions; this concept is what shall be referred to in this article asthe majoritarian paradox. It appears, for example, that there are goodreasons for people to relinquish some of their majoritarian authority toan independent central bank." Likewise, it is possible for people todecide that the institution of judicial review makes for better gov-erning. 12 Waldron's argument thus fails to rule out judicial review un-less he can point to some good reason why a majority of the peoplewould be wrong to implement a non-majoritarian procedure. 13

In this sense, Robert P. George is correct that the issue of judicialreview (and other questions about the arrangement of political institu-tions) "is properly conceived as itself a question of positive law."' 4 ButWaldron's attempt to pass the buck on this question to a procedure-driven standard still fails to answer a critical normative question: whenindividuals 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 wayto vote, and for this decision there is no procedure-driven standard avail-able; each person must form a substantive view about which arrange-ment of political institutions to support. 5

Faced with this normative question, Dworkin's argument aboutthe results of judicial review is once again relevant. If one agrees withDworkin 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 rea-son to oppose it. 6 Dworkin and Waldron disagree on this question aswell, and to get to the heart of this dispute one must delve into a largerdebate over the nature of "democracy."

II. Two VIEWS OF DEMOCRACY

Is there another argument available to Waldron to show that judi-cial review is democratically illegitimate? This question proves to bequite difficult because, as Dworkin notes, "it is a matter of deep contro-versy what democracy really is,"' 17 and this latent controversy plays acentral role in Dworkin and Waldron's disagreement over the value ofjudicial review. Waldron asserts that judicial review is troubling because"[t]here is something lost, from a democratic point of view, when anunelected and unaccountable individual or institution makes a bindingdecision about what democracy requires.""i Dworkin, on the otherhand, asserts just the opposite, claiming that judicial review "is not an-tidemocratic but, on the contrary, is practically indispensable todemocracy."' 9

To understand this disagreement, one must consider two very dif-ferent views about the nature of democracy and the reasons for support-

15 Michael Walzer similarly argues that "[n]o procedural arrangement can be defended ex-cept 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 choicewhere consensus on "correct" results cannot be expected, one must ultimately resort to a proce-dure-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 aboutthe best results and use the result-driven criteria to guide their vote, and so Dworkin must becorrect 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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DEMOCRACYAND JUDICIAL REVIEW

ing it. The first view sees democracy as a form of intrinsic good, basedon the right of the people to be responsible for any law which bindsthem, even if the laws they choose are far from ideal. The second viewadvocates democracy as an instrumental good-that is, as being the formof government most likely to select policies that conform to some un-derstanding of what is good or just-but authorizes deviations from themajoritarian or participatory ideal insofar as these deviations can betterpromote justice, efficiency, or some other good.

A. Democracy as an Intrinsic Good

The views expressed by Michael Walzer in his article Philosophy andDemocracy20 will serve as the model of the intrinsic view. Walzer be-lieves that for a law to be just it must be able to be traced back to adecision by the people as a whole, because "if the law is to bind them asfree 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 oftruth, '22 and Walzer denies rather strikingly "that the power of the peo-ple ought to be limited by the rightness of what they do . . "23 Inother words, Walzer argues that "knowing the right decision" is not thesame as "having the right to decide," and we must therefore respect thepeople's right to decide the law for themselves even if we "know" thattheir decision is wrong.24 For Walzer, the justification for democracy-the people's right to be responsible for any law that binds them-is inno way dependent on the laws that result, or whether these laws aregood or bad, or whether some other system might do better. Whatmakes the law just, according to the intrinsic view of democracy, is thatit originates from the will of the people to whom it applies, as expressedthrough their majoritarian legislatures, and non-majoritarian institu-tions must therefore be seen as unjust.

Walzer takes this position a step further and denies the possibilitythat the people could choose to delegate any of their authority to anindependent, non-majoritarian body. As Walzer writes,

one might insist on the inalienability of the popular will and then onthe indestructibility of those institutions and practices that guarantee

20 Walzer, supra note 15.21 Id. at 383.22 Id. (emphasis added).23 Id. at 387.24 Id. at 386.

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the democratic character of the popular will .... The people cannotrenounce now their future right to will (or, no such renunciation canever be legitimate or morally effective).25

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 pur-sue important long-term goals, but this requires that legislators not beable to hastily step in and overrule its decisions.26 However, in Walzer'sview, the legislature cannot legitimately bind its future self and therebyrefuse itself the ability to interfere with central bank decisions, under-mining the central bank's independence.

This view likewise dictates that the people cannot legitimately

choose to establish expansive judicial review of the form Dworkin advo-cates, for judicial review requires that the people commit themselves torespecting the future rulings of the courts even when those pose limita-tions on the popular will. (It will be argued below that the distinctive-ness of the intrinsic view requires its proponents to deny the legitimacyof delegation of this sort, or else the distinction between "having theright to decide" and "knowing the right decision" quickly collapses.) 2 7

This view, or something much like it, is what really drives Wal-dron's conclusion that American political institutions must consist ofmajoritarian legislatures unfettered by judicial review. Waldron con-ceives of democracy as requiring that "every man and woman in thesociety has the right to participate on equal terms in the resolution ofthat disagreement. "28 Like Walzer's view, this position focuses on theright to decide without concern for knowing the right decision. As Wal-dron phrases it, his conception of democracy also appears to rule outany sort of delegation, for when the people delegate, they are no longerall participating "on equal terms." For instance, the idea of a centralbank, 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 Con-

gress 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 deci-sions on equal terms with the central bankers.2 '

It is important to see that Waldron's requirements of "participa-tion" and "equal terms" are two separate claims. Few would disputethat democracy must generally involve the participation of the people inmaking political decisions, but this alone is insufficient to reach Wal-dron's conclusion that the proper democratic decision-making proce-dure is always a majoritarian one; that conclusion requires acceptance ofthe equal terms premise as well. But, as argued above, in cases wheresome individuals have greater expertise or face better incentives, it mightnot be desirable for everyone to participate on equal terms, and anequal-terms majoritarian decision about whether that decision should bemade on equal terms might well disavow majoritarianism. 30 For thesereasons, one should be skeptical of the intrinsic view of democracy thatis required to support Waldron's conclusions.

B. The Intrinsic View and Judicial Review

Before considering the alternative view of democracy, it is worthconsidering the possibilities for judicial review if the intrinsic view isaccepted. While it may appear at first that the intrinsic view rules outall forms of judicial review, it is in fact possible to advocate for theintrinsic view without disavowing judicial review entirely. For instance,Justice Stephen Breyer, who clearly believes that judicial review serves animportant function, has himself recently expressed a theory of govern-ment that closely resembles the intrinsic view of democracy: "[I] t shouldbe possible to trace without much difficulty a line of authority for themaking of governmental decisions back to the people themselves ...And this authority must be broad. The people must have room to de-cide and leeway to make mistakes." 3' Like Walzer and Waldron, Breyeris concerned with the right of the people to decide and is unconcernedwith whether they will know the right answer. 32

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).

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410 CARDOZO PUB. LAW, POLICY & ETHICS .

1. Process-Based Theories

The intrinsic view of democracy is entirely consistent with, and isgreatly facilitated by, process-based theories of judicial review like thatadvocated by John Hart Ely.33 The intrinsic view presupposes thatmajoritarian legislators faithfully represent all of their constituents. Butas Ely points out, the political process can "malfunction" either when"the ins are choking off the channels of political change to ensure thatthey will stay in and the outs will stay out"-that is, when those inpower pass laws to help keep themselves in office-or when "an effectivemajority [is] systematically disadvantaging some minority out of simplehostility or a prejudiced refusal to recognize commonalities of interest,and thereby denying that minority the protection afforded other groupsby a representative system. ' 34 In such cases, where the political processis broken and unwilling to fix itself, Ely writes:

Obviously our elected representatives are the last persons we shouldtrust with identification of either of these situations. Appointedjudges, however, are comparative outsiders in our governmental sys-tem, and need worry about continuance in office only very ob-liquely. . . . [This] puts them in a position objectively to assessclaims .. .that either by clogging the channels of change or by actingas accessories to majority tyranny, our elected representatives in factare not representing the interests of those whom the system presup-poses they are.35

If the courts work to protect the political process in this way, even thosewho hold the intrinsic view of democracy can agree that "a representa-tion-reinforcing approach to judicial review ... is not inconsistent with,but on the contrary (and quite by design) entirely supportive of, theunderlying premises of . . . representative democracy. ' 36 Walzer, too,seems to anticipate this deficiency, conceding the need for "some kindof enforcement, against the people if necessary, of nondiscriminationand [other] democratic rights. '" 37

It is important to recognize that the role of the courts in policingthe political process arises from the better incentives they face due to

33 JOHN HART ELY, DEMOCRACY AND DISTRUST (1980).34 Id. at 103.35 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 lifetenure, and perhaps also because they are appointed rather than elected(although their appointment has its roots in a political process), they areinsulated from momentary political pressures and "can sensibly claim tobe better qualified and situated to perform [this task] than politicalofficials. "

38

2. Substantive Entanglements

Acceptance of this process-based theory of judicial review may,however, have substantive implications as well, as it is impossible to fullydisentangle procedural issues from substantive value judgments. For in-stance, while advocates of campaign finance reform believe that limitingthe disproportionate political influence of the wealthy would improvethe democratic process, such reform requires the substantive conclusionthat political donations do not count as speech protected by the FirstAmendment. Similarly, some have suggested that one cannot fully par-ticipate in the democratic process without possessing some minimumlevel of education, but a right to education can be seen as a substantivevalue judgment despite its procedural implications. Economic libertyhas likewise been sometimes said to be crucial for individual autonomyand thus a procedural issue as well as a substantive issue.39 And Dwor-kin makes the stronger claim that "majoritarianism does not guaranteeself government unless all the members of the community in questionare moral members."40 Such a position may require that homosexuals,polygamists, and other morally disfavored groups be given full accept-ance, another largely substantive decision.

That political process concerns have substantive implications is rec-ognized by Waldron as well:

Based as [participatory democracy] is on respect for persons as moralagents and moral reasoners, the premises of that argument will cer-tainly yield substantive conclusions about what people are entitled toso far as personal freedom is concerned and it may well yield conclu-

38 ELY, supra note 33, at 88.

39 See, e.g., MURPHY ET AL., AMERICAN CONSTITUTIONAL INTERPRETATION 1168-71 (3ded. 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 themost-important primary good").

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sions about affirmative entitlements in the realm of social and eco-nomic well-being. 4'

Waldron is not clear, however, on how he thinks these needs might beprotected if they become suppressed by a broken political process.

The substantive protections arising from a process-based theory arevery limited in scope. They represent not the rights that should be af-forded to persons by virtue of their humanity, but instead merely thoseimplicated as being incident to the political process. The rights of per-sons may extend beyond the minimum rights required for political par-ticipation, but beyond this procedural core, the intrinsic view ofdemocracy leaves substantive decisions about what persons deserve tothe whim of majoritarian procedures.

C. Democracy as an Instrumental Good

The instrumental view of democracy takes a very different trackfrom the intrinsic view, advocating democratic procedures not out ofconcern for a supposed right of a majority of the people to be responsi-ble for the laws that they must follow-which, ironically, would causesomeone who is consistently in the minority to be governed by laws forwhich he was never responsible-but rather because democratic proce-dures 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 governmentdemocratically because that is the only mode of control under whichthose reasons can be expected to guide government that are recognizedin common deliberation as the valuations relevant to determiningpublic policy. This conception represents democracy, not as a regimefor the expression of the collective will, but rather as a dispensation forthe empowerment of public valuation. 42

Deliberation can lead to better policies in at least two distinct ways.The first, and perhaps the more commonly recognized, is that, as Chris-topher Eisgruber has put it, "sustained public deliberation helps moralopinion to converge upon new and better positions. 43

41 WALDRON, LAW AND DISAGREEMENT, supra note 6, at 285.42 Philip Pettit, Depoliticizing Democracy, 17 RATIO JuRus 52, 58 (2004).43 CHRISTOPHER EISGRUBER, CONSTITUTIONAL SELF-GOVERNMENT 55 (2001).

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Less often recognized, and of greater concern for the moment, isthe second way in which public deliberation leads to better and morejust policies. Not all reasons are deemed acceptable or equally persuasivein the public sphere, and the reasons which public debate filters out arethose which, if they were followed, would lead to policies that are insome sense unjust. Pettit suggests, for example, that:

Considerations that would not pass muster in public debate aboutwhat government should do include self-seeking observations to theeffect that such and such an initiative would give one section of thepopulation an advantage over others, as well as expressions of what isrequired by an ideal or cause that is not shared by all. 4

Eisgruber similarly points to "the people's belief that moral reasons aredifferent from self-interested reasons."45 The idea of democracy held bythese scholars is at odds with the intrinsic view of democracy becausethey would find policies based on these self-serving or inaccessible rea-sons to be unjust even ifthose policies were arrived at through a major-ity vote. Supporters of deliberative democracy advocate for democracynot because they believe in the good of majoritarianism for its own sake,but because they believe that sufficient public debate and deliberationwill lead people to take positions based on the right reasons, and theseevaluations, once aggregated, are most likely to arrive at the best andmost just policies.

1. Democracy as Equal Respect

The reasoning deemed acceptable for public policy-that whichadvocates of deliberative democracy find acceptable for public debate-appears to be that which treats every person's interests with equal con-cern 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 collectivedecisions be made by political institutions whose structure, composi-tion, and practices treat all members of the community, as individuals,with equal concern and respect."46 A similar theme is found in Dwor-kin's concept of moral membership:

44 Pettit, supra note 42, at 59.45 EISGRUBER, supra note 43, at 55.46 DWORKIN, FREEDOM'S LAW, supra note 3, at 17.

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Moral membership involves reciprocity: a person is not a member un-less he is treated as a member by others, which means that they treatthe consequences of any collective decision for his life as equally sig-nificant a reason for or against that decision as are compatible conse-quences for the life of anyone else. 47

At the same time, Dworkin is quite explicit that his view supports de-mocracy in the majoritarian sense only for instrumental reasons:

The constitutional conception requires these majoritarian proceduresout of a concern for the equal status of citizens, and not out of anycommitment to the goals of majority rule. So it offers no reason whysome non-majoritarian procedures should not be employed on specialoccasions when this would better protect or enhance the equal statusthat it declares to be the essence of democracy. 48

What sort of system would be ideal from the point of view of equalrespect? Perhaps it would be Dworkin's moral membership par excel-lence: each individual first puts aside his self-interest and instead takesevery person's interests into account equally, then decides which policyis best-a decision which may still be based on his subjective percep-tions about what sort of concerns are due the most weight, but whichdoes 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 par-ticular a system of majority votes without judicial review or any othernon-majoritarian institutions, can succeed at treating people with equalrespect. Eisgruber gives several reasons to be skeptical. First, because

47 Id. at 25.48 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 theorythat he ascribes to them, which he labels "the majoritarian premise," suggests that "it is a matterof 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 pro-

cess, and thereby reinforce the people's ability to decide for themselves. See supra Part 11.13. TheAuthor, 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 honorthe idea of equal respect.4" Second, even if voters put aside their self-interest, they know that their own single vote has little significance andthat 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 everyonevoted with equal respect for everyone else's interests, such a systemwould not likely be sustainable. Suppose that I find myself in a societywith just two other members, who we might label the Altruist and theEgoist, and we are voting to set some important societal policy. Sup-pose further that I choose my position after giving equal concern to thepositions of all three of us, as does the Altruist, but that the Egoist votesbased only on his own interest. The result is that the Egoist gets hisinterests counted three times-once each by himself, the Altruist, andme-whereas the Altruist and me are only counted twice. If I suspectthis is going on, the rational thing for me to do is to disregard theEgoist's interest when making my own decisions. Suppose then that Ibecome suspicious of the Altruist, as I would be apt to do if voting wereanonymous or if we were instead part of a very large polity and mightnot know each other. This suspicion would lead me to ignore his inter-ests as well, and the system of voting with equal concern would quicklycollapse. And if the Altruist remains true to his name and continuestaking others' interests into account with the same weight as his own, heis effectively penalized for his good will when he causes others' intereststo be given more total consideration than his own.

This example serves to undermine Waldron's argument aspresented in The Core of the Case Against Judicial Review, which explic-itly relies on the assumption of "a commitment on the part of mostmembers of the society to the idea of individual and minority rights."51

Waldron is trying to assume away the need for non-majoritarian institu-tions, like courts, to enforce equal respect by instead assuming a greatdeal of benevolence on behalf of the voters. One might questionwhether such an assumption is ever sound. But even if Waldron isgranted the assumption that most voters want to be benevolent, theabove scenario shows that such a commitment is still likely to be unsus-

49 EISGRUBER, supra note 43, at 50.50 Id.

51 Waldron, Against Judicial Review, supra note 1, at 1360.

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tainable in a system where voting is anonymous and in which at leastsome voters act like rational agents rather than angels.

The upshot of this discussion is that if the intrinsic view of democ-racy is rejected, and if the ideal of equal respect that is advanced bymany who hold the instrumental view of democracy is taken seriously,then unfettered majoritarianism would appear to be a very poor imple-mentation of democracy, leaving substantial room for other institutionalarrangements-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 consistentwith current practices must be able to account for delegation of poli-cymaking power to non-majoritarian institutions. The chief exampleset forth above was that of an independent central bank, which is nowfavored in most sophisticated democracies worldwide (although centralbanks are hardly the only political institutions that have been delegatedpolitical authority of this sort).

As it has been presented, the intrinsic view of democracy is unableto accept the legitimacy of delegation, whereas the instrumental viewcan, in theory, endorse institutions like central banks and judicial re-view. But a critic of the instrumental view might also suggest a thirdoption-call it the weak intrinsic view-that is similar to the regularintrinsic view but no longer insists (as Walzer did) that the people's rightto create the laws that bind them is inalienable. Such a view wouldpermit delegation if the people decide that it is the best way to achievesome shared goal.52

For present purposes, the critical fact about the weak intrinsic viewis that its implications for the legitimacy of non-majoritarian institu-

52 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 be-nevolent dictatorial systems like Singapore's "coercive capitalism," which "ha[s] long yieldeddramatic economic growth." Walter F. Murphy, Alternative Political Systems, in CONSTITU-TIONAL POLITICS: ESSAYS ON CONSTITUTION MAKING, MAINTENANCE, AND CHANGE 9, 27

(Sotirios A. Barber & Robert P. George eds., 2001). Dworkin, however, would think this unac-ceptable because "[diemocracy would be extinguished by any general constitutional change thatgave an oligarchy of unelected experts power to overrule and replace any legislative decision theythought unwise or unjust." DWORKIN, FREEDOM'S LAW, supra note 3, at 32. If we believeSingapore's government to be legitimate, then this belief is most consistent with the weak intrin-sic view where non-majoritarian institutions arise through delegation.

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tions are indistinguishable from those of the instrumental view. If thepeople, who possess the right to decide, can will that a decision be madeby whatever institution knows the right answer, then Walzer's distinc-tion between having the right to decide and knowing the right answercollapses. The instrumental view of democracy is able to support non-majoritarian institutions because the intrinsic good which it seeks is bestachieved through those non-majoritarian institutions; the weak intrin-sic view is likewise able to support non-majoritarian institutions becausethe good which the people seek is best achieved, they believe, throughnon-majoritarian institutions. Just as someone holding an instrumentalview of democracy may find expansive judicial review desirable, so toothe people holding a weak intrinsic view may also find expansive judicialreview desirable. The weak intrinsic view of democracy is just as ac-cepting of judicial review as the instrumental view.

This conclusion is the final nail in the coffin for Waldron's (andWalzer's) argument that judicial review of the law's substance (as com-pared to judicial review seeking merely to protect political procedure)should be deemed democratically illegitimate regardless of whether ornot the people believe it would lead to better results. That argumentcan only succeed under the pure intrinsic view of democracy, which isan unacceptable view because it cannot account for delegation, as in thecase of central banks.

It follows, therefore, that strict adherence to the view that democ-racy should be equated with majoritarian legislatures must be rejected.Sometimes the people will be justified in adopting institutions that arenon-majoritarian in character if they are convinced that those institu-tions will lead to better or more just results.

III. JUDICIAL REVIEW REVISITED

As previously identified, there are two claims underlying Dwor-kin's thesis that judicial review makes the United States more just.53

The first claim was about the possibility of appealing to some consensusabout just results, and Dworkin's views suggest an instrumental view ofdemocracy 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 goodand just results with judicial review than without judicial review.55

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 isnot.16 The remainder of this Article will sketch out a constructive argu-ment suggesting that people should want judicial review.

A. Judicial Review under the Instrumental View

Previously, when considering judicial review under the intrinsicview of democracy, judges were found to be better situated than legisla-tors to consider matters of principle because of their unique institutionalposture. 57 Because judges are appointed with life tenure, they are insu-lated from momentary political pressures and face a different set of in-centives than do legislators, who may seek to write themselves intooffice. 58 And because judges face better incentives for policing the polit-ical process than do legislators, judges are better situated to fulfill thatduty, despite charges that they are unelected or unaccountable.

Having now abandoned the intrinsic view of democracy, the in-centives faced by judges as compared to legislators must be examinedonce again to consider whether there may be instances where judges arebetter situated to make certain decisions; if so, this would be groundsfor supporting judicial review.

To compare the merits of legislative decision-making and judicialreview, one must first understand Congress's possible shortcomings.Abner Mikva considers just that in a seminal article entitled How WellDoes Congress Support and Defend the Constitution?9 Mikva served in

Congress for ten years before being appointed as a federal appellatejudge and, having observed both institutions from the inside, he conveysseveral doubts about Congress's ability to address complicated issues ofprinciple.

First, Mikva suggests that Congress is poorly designed for seriousdebate. He writes, "both houses are large, making the process of engag-ing in complex arguments during a floor debate difficult. For the mostpart, the speeches made on the floor are designed to get a member'sposition on the record rather than to initiate a dialogue. '60 Second,Mikva asserts that legislators are unable to devote much time to consid-

56 See MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999);

LARRY KRAMER, THE PEOPLE THEMSELVES (2004).57 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.

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ering most bills because of the immense volume of legislation passingthrough Congress. 61 Third, Mikva believes that legislators are often un-informed about issues of constitutional principles, leaving them "almosttotally dependent on the recommendations of others in making consti-tutional judgments. '

"62

Finally, Mikva suggests that legislators are more devoted to short-term political pressures than to serious matters of principle and goodpolicy. He asserts rather broadly that "[o]n the matter of constitutional-ity, the [floor] debates, to the extent they took place, are filled with self-serving conclusory congressional discussion .... 63

As an example, Mikva quotes one Congressman as complainingthat "[it is hard to vote against a bill which states in its title that it seeksto control organized crime." 64 Congress may be the body that is mostdirectly tied to the will of the people, but, Mikva suggests, it can some-times still do a poor job of representing them, particularly when calledupon to reflect considered judgments on matters of principle.

In comparison, a judge's life tenure and her corresponding insula-tion from momentary political pressures gives reason for one to thinkthat judges may be better decision-makers when faced with matters ofprinciple. For example, one may as a considered judgment hold theprinciple that free speech should be protected, yet might also find one-self disinclined to adhere to that principle at a particular moment whenencountering disfavored speech. This scenario is analogous to the com-mitment problem that was solved by creation of the independent centralbank, where the overriding interest in keeping inflation down in thelong term and the often short-term political pressure to expand themoney supply was resolved by depoliticizing decision-making throughcreation of a politically insulated institution. Mikva's article suggeststhat Congress may be particularly poor at holding firm to matters ofpolitical principle, in which case the best course of action might be toenshrine these as constitutional principles and entrust them to the pro-tection of the judiciary.

61 Id.62 Id.63 Id. at 600.64 Id. at 603.

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1. The Importance of Written Opinions toJudicial Decision-Making

Going beyond the issue of political insulation, however, it can beargued that many scholars have neglected the tremendous importance ofthe requirement that judges issue written opinions in every case. Con-structing these written opinions demands three traits that society eitherdoes not expect or cannot guarantee from legislators: consistency, appealto public reasons, and engagement with counterarguments and dissents.

First, a judge's opinions are expected to be consistent. While anaccusation of "flip-flopping" may do minor harm to a legislator's repu-tation, these charges are common and often do little to impede a sea-soned legislator's chance of reelection. On the other hand, if a judgewere to engage in "flip-flopping" in a series of inconsistent opinions, itwould be considered a serious and troubling development, perhaps wor-thy of impeachment. Legislators also can often get away with subtleinconsistencies, such as voting both for tax cuts and for increased spend-ing on social programs, justifying each on narrow grounds (if at all). Bycontrast, judges are often expected to give much more expansive anddetailed explanations of their reasoning. Over time they are generallyexpected to be able to fit their opinions into a larger interpretive frame-work or constitutional philosophy, and so even subtle inconsistencies areunlikely to go unnoticed or unchallenged.

Second, judicial opinions are expected to appeal to public reasonsand common values. As seen in the above discussion of deliberativedemocracy,65 this protection prevents judges from basing their decisionson a variety of factors that would be inconsistent with equal respect forpersons, such as an unjustified preference for one section of the popula-tion over another. Legislators, on the other hand, are generally subjectto no such demands on the vast majority of votes they cast.

Third, judicial decisions are expected to make some concerted ef-fort to engage counterarguments and dissents. At the appellate level, eachcase is assigned to a panel of several judges, and a dissenting opinion willforce those in the majority to give its arguments serious consideration.Even without a dissenting opinion, however, the thorough opinions ex-pected from judges will generally need to address at least the most obvi-ous objections that might be raised against their reasoning. Inlegislatures, on the other hand, Mikva suggests that such debates are rare

65 See supra Part II.C.

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DEMOCRACYAND JUDICIAL REVIEW

and largely inadequate.66 Legislatures may have too many members andtoo little time to have a thorough debate on all sides of an issue, or alegislator may find that the best way to win support for reelection is tomake an impassioned appeal to his base and to simply ignore the otherside.

2. The Institutional Incentives of Judges and Legislators

For each of the requirements just mentioned, it is possible to imag-ine a similar explanation being demanded of a legislator by an election-year challenger or by aggrieved constituents. However, such demandsfor explanation from legislators are comparatively very rare, and theirresponses will, in all likelihood, be much less thorough than a judicialopinion. Furthermore, legislators may feel less pressure to provide satis-factory answers to these challenges because voters may be more con-cerned with the positions a legislator takes than the reasoning behindthem. For judges, on the other hand, expectations may be focused moreon demands for the quality of their reasoning, rather than on the posi-tions they end up taking. In any case, insofar as one might expect legis-lators to satisfy these three demands, they are challenged to do so onlysparingly. For judges, however, the requirement of a written opinion isa guarantee that they must engage in thorough and rigorous deliberationover the issues in each and every case they hear, and the hope is that thestringency of these demands will result in judges making better decisionson difficult, abstract questions than legislators do.

Even Walzer-who has been presented as a vigorous opponent ofjudges having the authority to make decisions contrary to those ofmajoritarian legislatures-seems to acknowledge the value of the thor-ough and rigorous deliberation that is expected of judges:

[Judges'] special role in the democratic community is connected.., totheir thoughtfulness, and thoughtfulness is a philosophical pos-ture. . . .For the discussions of judges among themselves really doresemble the arguments that go on in . . . the mind of the philoso-pher ... much more closely than democratic debate can ever do. Andit seems plausible to say that rights are more likely to be defined cor-rectly 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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Walzer does not present this as an argument in favor of judicial review.As expressed above,68 he believes majoritarianism to be important despitethe fact that it may not always yield the best or correct decisions. Yet, ifone instead believes that democracy is furthered by a 'correct' under-standing of rights and equal respect, Wazer's point is important: whilejudges may be few in number, the careful reflection, deliberation, andjustification that their office demands of them may, in certain decisions,yield better judgments than the whims of the masses, which may attimes make inconsistent, impossible, or ill-considered demands.

The position argued for here should not be confused with the ideaof rule by elites.69 The argument is not that judges are smarter or moretalented than other citizens. Rather, the important fact is that judgesmust and do engage in a very special type of rigorous discourse. It maybe that this discourse demands some level of intellectual sophistication,but this constraint hardly requires that as the selection of judges mustfavor those who are more educated or from an elite background, so longas all candidates demonstrate a sufficient ability to present and defendtheir arguments soundly. The effect is not to favor elites' views overothers, but rather to favor sound views over unsound views. What qual-ifies judges as being particularly well-situated to decide difficult, abstractquestions is simply that they do, by requirement of their office, producea thorough and rigorous justification for every decision they make, aprocess which legislators and voters need not regularly engage inthemselves.

B. Fears about Judicial Review

At this point one might raise three distinct concerns which ques-tion 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 isa concern about the possibility of error, and the third is a fear aboutabuse of power.

68 See supra Part II.A.69 Consider, for instance, the charge posed by Eisgruber:

Democratic principles .. preclude us, for example, from saying that judges are espe-cially good at identifying moral and political principles because they are smarter thanordinary Americans. We cannot say that we believe in 'government by the people' ifwe think the people are too dense to make their own judgments about fundamentalissues of political justice. In effect, democracy requires us to assume a parity of basicmoral judgment.

EISGRUBER, supra note 43, at 57.

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First, one might be concerned that even if an elite background isnot in theory necessary for a judicial appointment, and even if bettereducation or social status play no role in the justification for judicialreview, politicians still might primarily nominate educated elites and filla powerful judiciary with individuals who are out of touch with mostvoters' concerns. Yet is it reasonable to think that many judicial nomi-nees 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, oras advocates of this or that public policy. . . .When they are ques-tioned at their confirmation hearings, they are presumed to have opin-ions of roughly the same sort as their questioners-commonplaceopinions, much of the time, else they would never have beennominated.

71

If anything, this reasoning suggests that there is little to fear fromjudges, because they must be both nominated and confirmed by a politi-cal process. Far from being out-of-touch elites, they instead are likely tohave views that quite closely resemble those of the prevailing politicalregime.

The second possible concern is that bad rulings made by judges aremuch harder to overturn and correct than bad policies enacted by legis-latures. In response, it is important to first recall that the primary rea-son this Article advocates for judicial review is because on some mattersjudges may be less likely to make bad decisions than legislatures; that is,while the source of errors may shift from legislatures to judges, they willalso be fewer in number. That being said, if one considers subtle mis-takes in addition to obvious ones, it is not at all clear that judicial mis-takes are harder to correct. Clever legislators can market policies indeceptive ways-for instance, the estate tax is referred to as the "deathtax" by those on the right and the "inheritance tax" by those on theleft-such that voters are led to unwittingly support policies that runcontrary to their own interests, and this deception can easily continueundetected by the voters. On the other hand, because judges must issuewritten decisions, and "[Itlhrough law journals, newspapers, politicalcommittees, 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. 71 If another courtdoes not soon acknowledge the mistake and overrule the decision, thenthe opinion will still be open to criticism by legal scholars as well as bythe next generation of lawyers and judges, and thus no unsound or ill-reasoned ruling is likely to remain in effect for too long.

The third potential concern is that if judges are given the tremen-dous power of judicial review, they will be tempted to overstep theirauthority by ruling on issues that are more appropriately placed beforelegislatures, or by substituting their own moral judgments for those ofthe nation. A restriction on judicial supremacy of this sort can, how-ever, be found in the use of a written constitution, which has been givenlittle attention in this Article thus far. Dworkin identifies "two impor-

tant restraints that sharply limit the latitude the moral reading gives toindividual judges." 72 First, judges are constrained by the text of theconstitution: they may rule only on controversies about moral issuesthat are contained in the Constitution, 73 and so federal judges will notbe able to step into such policy areas as, say, dictating the content ofpublic school curricula. Second, judges are constrained by the country'straditional and historical understanding of what the Constitution'smoral language might call for.74 Because of this limitation, "[e]ven ajudge who believes that abstract justice requires economic equality can-not interpret the equal protection clause as making equality of wealth,or collective ownership of productive resources, a constitutional require-ment, because that interpretation simply does not fit American history

or practice, or the rest of the Constitution."75 These two restrictions, asDworkin poses them, are rather abstract, and there might be severaldifferent ways to understand them; the more favorable understanding isthe one that best balances the advantages of judicial review against thedanger of judicial overreach.

These constraints of text and history, however, do a poor job oftracking the argument for judicial review that has been presented here,which calls for an additional restriction: judges should consider overrulinga legislative decision only when they can confidently assert that their uniqueinstitutionalposture gives them better incentives and makes them better situ-

71 EISGRUBER, supra note 43, at 59.

72 DWORKIN, FREEDOM'S LAW, supra note 3, at 10.

73 Id.74 Id. at 10-11.

75 Id. at 11.

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ated than the legislature to identify the demands of the moral principle atstake. Thus, it is crucial to select judges who have the modesty andhumility to refrain from striking down a law, even one which they thinkis a very bad and ill-conceived law, if the legislature is better qualified tojudge the merits of that law than judges are.76 This call for judicialmodesty is not lost on Dworkin, who similarly argues:

Nor does it follow, when courts have power to enforce some constitu-tional rights, that they have power to enforce them all. Some imagina-tive American constitutional lawyers argue, for example, that thepower of the federal courts to declare the acts of other institutionsinvalid because unconstitutional is limited: they have power to enforcemany of the rights, principles, and standards the Constitution creates,on this view, but not all of them.77

One might still be skeptical that such modest and humble judges,who can see a policy which they personally believe to be inconsistentwith constitutional principle yet decline to intervene out of respect forlegislative institutions, can really exist. If so, however, one must likewisebe skeptical about the possibility of modest legislators, or of legislatorschosen by modest voters, who will sometimes put aside their own inter-ests out of equal respect and concern for others. Finding a few modestjudges is a comparatively easy task when considering the alternative ofabolishing judicial review and hoping for modesty from millions of peo-ple voting anonymously.

C. Judges as Constructive Experts

When the idea of an independent central bank was introduced asan example of how non-majoritarian institutions can sometimes havegreat value, this Article identified two key considerations that make acentral bank desirable: first, central banks are generally run by peoplewho have special knowledge and expertise that make them better suitedto guide monetary policy; and second, central banks are isolated frommomentary political pressures and thus face better incentives for makingthe best decisions. So far, this Article's defense of judicial review hasbeen 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 Judicial Review: A Comment on Ronald Dworkin's "Moral Reading" of the Constitu-

tion, 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 defendjudicial review on the grounds that judges are more knowledgeable, orthat they possess some sort of substantive expertise, because it is not atall apparent that this is actually the case under current American prac-tice. Judicial nominations in the United States are a highly politicizedprocess, and there is little reason to believe that the legal expertise that isexpected of judicial nominees is of any help in resolving the controver-sial moral questions that often arise before them.

On a theoretical level, however, the possibility that judicial reviewcould be defended on the grounds of judges' substantive expertiseshould not be ruled out. Suppose that at some point a vague socialconsensus began to arise about what sorts of individuals might be partic-ularly adept at thinking through and resolving conflicts of rights in awise and thoughtful manner-and surely there is room for some con-sensus on what sorts of temperament, training, and experience make forbetter judges-and suppose that the judicial appointment processevolved in such a way as to favor these individuals as candidates for thebench. If it were commonly understood by all involved in the judicialappointments process that they were seeking to select the candidateswho are most knowledgeable and most gifted at arbitrating over thesemoral disputes, then judges would indeed be able to claim some addedlegitimacy by virtue of their perceived expertise; in essence, the judicialappointment process would then allow judges to be treated as construc-tive experts with regard to matters that legislatures choose to leaveunresolved.

In one important respect, it might be thought that current Ameri-can practice already treats judges in this way. Disputes often arise beforejudges because a law is vague or ambiguous in some respect, and not allof these ambiguities are accidental. A group of legislators may some-times agree on a particular policy in the abstract, but each for very dif-ferent reasons, leading them to pass a broad law despite widespreaddisagreement about how it should be interpreted in specific circum-stances; or legislators might find it politically advantageous to leave partsof a bill vague rather than to take a controversial political stance. Incases such as these, legislators may be fully aware that the ambiguitieswill need to be resolved by the courts, and they are likely to have thosesorts 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 theseissues; then, when in the course of legislation, those legislators find anissue that they are unwilling or unable to resolve, they leave it as an openquestion to be settled by the judges whose expertise was affirmed by theapproval of their nominations.

D. The "Constitutional Canon" as a Guide toResult-Driven Institutional Design

Given the abstract arguments for judicial review and the specula-tive concerns about judicial supremacy, how should a democratic citizendecide whether or not to support the establishment of judicial review?In defending the moral reading against possible alternatives, the firstcase Dworkin discusses is Brown v. Board of Education,78 a case of cen-tral importance to modern multicultural democracies. Cass Sunsteinhas argued that "an approach to Constitutional Interpretation is unac-ceptable if it entails the incorrectness of Brown v. Board of Education. " 79

The argument could be taken a step further to say not only that justicerequires that the people think Brown was decided correctly, but thatthey must also think it was decided correctlyfor the right reason. That is,racial segregation in public schools is wrong not merely because it affectseducation in a way that is detrimental to the political process-the Courtwas not concerned merely that without equal education blacks might beill-informed voters-but because it violates American moral beliefsabout the substantive right to equal respect to which each person isentitled.

Jack Balkin and Sanford Levinson seem to agree with Sunstein, andhave identified several cases of this sort that might be considered part ofa "constitutional canon."'80 One could articulate many different consti-tutional canons, each with a different purpose, but the present concernis with those cases that are widely recognized by the public as havingbeen rightly or wrongly decided. This canon is reflected by the set ofcommitments the public demands Supreme Court nominees to adhereto: Brown must be correct; Lochner8 must be wrong; Korematsu82 and

78 347 U.S. 483 (1954).

79 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 Constitutional Law, II HARV. L. REV.

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 con-sensus that Griswold4 must be correct.85

When a citizen must decide whether to favor judicial review, sheshould consider this constitutional canon.86 Judicial review creates morejust results by intervening in cases such as Brown, and the limited formof judicial review which is advocated in this Article-where judges areto refrain from interference in legislative decisions except in the rarecircumstances where their special institutional posture makes themuniquely qualified to intervene-could also yield the desired results incases like Korematsu and Dred Scott, or at least would leave the state ofthe law no worse off than if the system did not allow judicial review atall. Faced with the normative question of whether judicial review isdesirable, this Article urges people to agree with Dworkin that a societywith a judicially enforced constitution would in all likelihood createmore just policies than one in which rights are left, as Waldron wouldhave them, to the conscience of majoritarian legislatures.

CONCLUSION

Is judicial review inconsistent with democracy? It all depends onone's view of "democracy." To support Dworkin's contention that theyare compatible, Waldron charges, one "must therefore show that in

83 Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856).84 Griswold v. Connecticut, 381 U.S. 479 (1965).85 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 BorkHearings: 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 ofGriswold during their respective confirmation hearings. Hearings on the Nomination of JohnRoberts 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 andBrown 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 af-firming that he "accept[s] the basic legal principles" in Griswold), available at http://www.wash-

ingtonpost.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 particulareffects-the decisions (good and bad) that it has yielded ...." Waldron, Against Judicial Re-view, 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 evaluatejudicial review based on its prospective effects. Waldron's failure inevitably leads to a results-

based theory such as Dworkin's moral reading.


some circumstances judicial review of legislation does not detract at allfrom, and maybe even enhances, the democratic character of the politi-cal system of which it is a part,"87 and that is exactly what this Articlehas shown. By rejecting the intrinsic view of democracy and adoptingan instrumental view based on equal respect, judicial review should beseen not only as democratically legitimate but in fact as potentially de-mocracy-reinforcing. Moreover, this Article has offered a constructiveargument suggesting that judges' unique institutional posture may makethem better suited than legislatures for deliberating on certain matters ofprinciple. If the people consider this argument and find it to be correct,then their democratic government has much to gain from adopting asystem of judicial review.

87 WALDRON, LAW AND DISAGREEMENT, supra note 6, at 288-89.

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IS JUDICIAL REVIEW COMPATIBLE WITH DEMOCRACY? · is judicial review compatible with democracy?...

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