GW Law Faculty Publications & Other Works Faculty Scholarship 2012 The Institutional Case for Judicial Review Jonathan R. Siegel George Washington University Law School, [email protected] Follow this and additional works at: https://scholarship.law.gwu.edu/faculty_publications Part of the Law Commons Recommended Citation 97 Iowa Law Review 1147 (2012) This Article is brought to you for free and open access by the Faculty Scholarship at Scholarly Commons. It has been accepted for inclusion in GW Law Faculty Publications & Other Works by an authorized administrator of Scholarly Commons. For more information, please contact [email protected]. A3_SIEGEL.DOCX (DO NOT DELETE) 5/6/2012 4:03 PM The Institutional Case for Judicial Review Jonathan R. Siegel ABSTRACT: The “popular constitutionalism” movement has revived the debate over judicial review. Popular constitutionalists have attacked judicial review as being illegitimate in a democracy or inconsistent with original intent, and they have argued that the Constitution should be enforced through popular, majoritarian means, such as elections and legislative agitation. This Article shows in response that the judicial process has institutional characteristics that make judicial review the superior method of constitutional enforcement. Prior literature has focused on just one such institutional characteristic—the political insulation of judges. This Article, by contrast, shows that the case for judicial review rests on a whole range of institutional distinctions among the judicial, electoral, and legislative processes. Most important among these distinctions are that the judicial process is focused (it resolves issues discretely, without entangling them with other issues), whereas the electoral process is unfocused; and the judicial process is mandatory (a complainant can invoke it as of right), whereas the legislative process is discretionary. The full range of its distinctive institutional characteristics, not just the political insulation of judges, normatively justifies judicial review. INTRODUCTION .................................................................................... 1149 I. THE REVIVED DEBATE OVER JUDICIAL REVIEW .................................... 1152 A. THE INSTITUTION OF JUDICIAL REVIEW ............................................ 1153 B. ALEXANDER BICKEL’S ATTACK ON, AND DEFENSE OF, JUDICIAL REVIEW .......................................................................................... 1154 C. THE MODERN REVIVAL OF THE DEBATE ........................................... 1156 1. Historical Claims About Means of Enforcing the Constitution .......................................................................... 1157 2. Rejecting Judicial Review on Democratic Grounds ........... 1158 D. RECENT DEFENSES OF JUDICIAL REVIEW ........................................... 1160 Professor of Law and Kahan Research Professor, George Washington University Law School. J.D., Yale Law School; A.B., Harvard College. The author wishes to thank Brad Clark, Richard Fallon, David Fontana, Amanda Frost, Orin Kerr, Amanda Leiter, Jefferson Powell, Mark Tushnet, Amanda Tyler, and David Zaring for their helpful comments on earlier drafts. 1147 A3_SIEGEL.DOCX (DO NOT DELETE) 5/6/2012 4:03 PM 1148 IOWA LAW REVIEW [Vol. 97:1147 II. A DIFFERENT DEFENSE OF JUDICIAL REVIEW ........................................ 1161 A. ENFORCING THE CONSTITUTION THROUGH THE ELECTORAL PROCESS ........................................................................................ 1163 1. Practical Difficulties ............................................................. 1165 2. Theoretical Differences ....................................................... 1169 a. Focused vs. Unfocused....................................................... 1169 b. Transparent vs. Inscrutable .............................................. 1171 c. Precedent Based vs. Non-Precedent Based ........................... 1174 d. Majoritarian vs. Rights Based .......................................... 1174 e. Collective vs. Individualized ............................................. 1175 B. ENFORCING THE CONSTITUTION THROUGH THE POLITICAL PROCESS ........................................................................................ 1177 1. Focused vs. Unfocused ......................................................... 1178 2. Inscrutable vs. Transparent ................................................. 1180 3. Precedent Based vs. Non-Precedent Based ........................ 1182 4. Mandatory vs. Discretionary ................................................ 1182 5. Majoritarian vs. Rights Based .............................................. 1186 6. Collective vs. Individualized ................................................ 1187 III. THE CASE FOR JUDICIAL REVIEW .......................................................... 1191 IV. IMPROVING JUDICIAL REVIEW .............................................................. 1194 V. CONCLUSION ....................................................................................... 1199 A3_SIEGEL.DOCX (DO NOT DELETE) 5/6/2012 4:03 PM 2012] THE INSTITUTIONAL CASE FOR JUDICIAL REVIEW 1149 INTRODUCTION The counter-majoritarian difficulty is back. Judicial review, that hallowed American institution, is once again under attack. After decades of praising the bold societal reforms achieved via judicial review, scholars— mostly, liberal scholars faced with a more conservative Supreme Court— have rediscovered objections to the practice. Some of these scholars object to judicial review on historical, originalist grounds. They claim that, contrary to decades of settled understanding, the Framers never intended courts to enforce the Constitution.1 Other scholars attack judicial review as inconsistent with democracy. Unelected, unaccountable judges, these scholars claim, should not have the final word on the Constitution.2 These critiques of judicial review constitute a movement—the “popular constitutionalism” movement. The popular constitutionalists suggest that the Constitution should not be enforced by judges, but by popular mechanisms. The “people themselves,” some say, should enforce the Constitution, via elections, public debate, and similar means.3 Others suggest that the elected legislature, not the undemocratic courts, should interpret and enforce the Constitution.4 Naturally, judicial review has its defenders. In response to the popular constitutionalism movement, some scholars defend judicial review on textual and historical grounds.5 Others defend judicial review normatively.6 The debate continues as the popular constitutionalists offer rebuttals and further arguments.7 1. See generally Larry D. Kramer, The Supreme Court, 2000 Term—Foreword: We the Court, 115 HARV. L. REV. 4 (2001). 2. See generally MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999); Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L.J. 1346 (2006). 3. Kramer, supra note 1, at 26–29. 4. TUSHNET, supra note 2, at 154–76; Waldron, supra note 2, at 1348–49, 1375–76. 5. See generally Bradford R. Clark, Unitary Judicial Review, 72 GEO. WASH. L. REV. 319 (2003); John Harrison, The Constitutional Origins and Implications of Judicial Review, 84 VA. L. REV. 333 (1998); Saikrishna B. Prakash & John C. Yoo, The Origins of Judicial Review, 70 U. CHI. L. REV. 887 (2003). 6. See generally Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 HARV. L. REV. 1359 (1997); Erwin Chemerinsky, In Defense of Judicial Review: A Reply to Professor Kramer, 92 CALIF. L. REV. 1013 (2004); Richard H. Fallon, Jr., The Core of an Uneasy Case for Judicial Review, 121 HARV. L. REV. 1693, 1699 (2008); Frederick Schauer, Judicial Supremacy and the Modest Constitution, 92 CALIF. L. REV. 1045 (2004). 7. E.g., Mark Tushnet, How Different Are Waldron’s and Fallon’s Core Cases for and Against Judicial Review?, 30 OXFORD J. LEGAL STUD. 49 (2010); Jeremy Waldron, Judges as Moral Reasoners, 7 INT’L J. CONST. L. 2 (2009). For other recent contributions to the discussion, see, for example, Todd E. Pettys, Popular Constitutionalism and Relaxing the Dead Hand: Can the People Be Trusted?, 86 WASH. U. L. REV. 313 (2008); David E. Pozen, Judicial Elections as Popular Constitutionalism, 110 COLUM. L. REV. 2047 (2010); Jedediah Purdy, Presidential Popular Constitutionalism, 77 FORDHAM L. REV. 1837 (2009); Jamal Greene, Giving the Constitution to the A3_SIEGEL.DOCX (DO NOT DELETE) 5/6/2012 4:03 PM 1150 IOWA LAW REVIEW [Vol. 97:1147 A vital argument, however, is missing from these exchanges. What is needed in defending judicial review is an institutional analysis. Such analysis would explain why judicial review is the superior mechanism for constitutional enforcement based on the institutional characteristics of courts. It would analyze the ways in which the characteristics of the judicial process, and, comparatively, the characteristics of the electoral and legislative processes, contribute to making each process likely or unlikely to serve as a good mechanism for constitutional enforcement. The normative defenders of judicial review do provide some institutional analysis, but not much. They make just one point in this regard. Specifically, they echo Alexander Bickel’s classic defense of judicial review as providing a necessary check on political actors by others who are insulated from the political process.8 However, that observation, while important, is only part of the story. A more thorough