| | ⅜ Articles Democracy and Judicial Review: Are They Really Incompatible? Annabelle Lever This article shows that judicial review has a democratic justification, although it is not necessary for democratic government and its virtues are controversial and often speculative. Against critics like Waldron and Bellamy, it shows that judges, no less than legislators, can embody democratic forms of representation, accountability and participation. Hence, judicial review is not undemocratic sim- ply because it enables unelected judges to over-rule elected legislators when people disagree about rights. Against recent defenders of judicial review, such as Eisgruber and Brettschneider, it shows that democratic arguments for judicial review do not require judges to be better at protecting rights than legislators. Hence a democratic justification for judicial review does not depend on complex and inevitably controversial interpretations and evaluations of judicial as opposed to legislative judgments. Democratic government does not demand special virtue, competence or wisdom in its citizens or their leaders. From a democratic perspective, therefore, the case for judicial review is that it enables individuals to vindicate their rights against government in ways that parallel those they commonly use against each other. This makes judicial review normatively attractive whether or not it leads to better decisions than would be made by other means. s judicial review incompatible with democratic govern- The first, which we can call the substantive thesis, main- ment? The claim that it is has been ably defended by tains that it is impossible to decide whether or not I Jeremy Waldron, a longstanding opponent of judicial judiciaries are better than legislatures at protecting rights, ⅜ review. A recent paper, aptly titled, “The Core of the Case because evidence on this matter is inconclusive. The sec- against Judicial Review,”, summarizes these arguments.1 ond thesis, which we can call the procedural thesis, holds Shorn of historical digressions and contentious interpre- that legislatures are overwhelmingly superior to courts from tations of American constitutional practice,2 Waldron a procedural perspective. This is because legislatures are presents the democratic case against judicial review in the more legitimate, egalitarian, and participatory than courts, form of two theses. according to Waldron, and so embody crucial democratic rights and values to an extent that is impossible for the latter to imitate. Thus, Waldron maintains, Annabelle Lever is a Fellow in Philosophy, London School judicial review is vulnerable to attack on two fronts. It does not, of Economics and is about to join the Institute of Science, as is often claimed, provide a way for society to focus clearly on Ethics and Innovation at Manchester University as an the real issues at stake when citizens disagree about rights.... interdisciplinary research fellow. ([email protected]). And it is politically illegitimate, so far as democratic values are concerned: by privileging majority voting among a small num- This work was presented to the Department of Political ber of unelected and unaccountable judges, it disenfranchises Science, University of Essex; the Association of Legal Philos- ordinary citizens and brushes aside cherished principles of rep- ophy annual conference in Dublin; the conference of the resentation and political equality.3 British Journal of Political Science; the Eighth Priority in Practice Workshop, School of Public Policy, University Waldron’s arguments find an echo in Richard Bel- College, London; the Department of Political Science at the lamy’s Political Constitutionalism, 4 which contrasts a legal University of York and the Legal Colloquium, London constitutionalism based on the idea that courts should School of Economics. The author thanks all the participants enforce a substantive set of rights, expressive of demo- for their helpful comments, and particularly appreciates the cratic equality, with a political constitutionalism informed willingness of Dennis Thompson, George Bingham Powell, by Philip Pettit’s reinterpretation of republican political Stephen Guest, Joshua Cohen, Albert Weale, Anne Phillips, thought.5 For Bellamy, as for Waldron, judicial review is and Nicola Lacey to read previous versions of this article. I undemocratic on procedural grounds, because the power am very grateful to the anonymous reviewers of Perspec- it gives judges to overrule legislatures is at odds with tives on Politics for helping me to reshape and develop this democratic principles. As Bellamy summarizes his polit- paper. ical constitutionalism: doi:10.1017/S1537592709991812 December 2009 | Vol. 7/No. 4 805 ⅜ | | ⅜ Articles | Democracy and Judicial Review A system of “one person, one vote” provides citizens with roughly ment place on the comprehensive strategic judgements equal political resources; deciding by majority rule treats their of others. views fairly and impartially; and party competition in elections However, I share Waldron’s skepticism that judges are and parliament institutionalizes a balance of power that encour- ages the various sides to hear and harken to each other, promot- evidently better than legislatures at protecting rights. The ing mutual recognition through the construction of compromises. substantive thesis strikes me as correct, because the rela- According to this political conception, the democratic process is tive merits of judicial, as compared to legislative, protec- the constitution. It is both constitutional, offering a due process, 6 tions for rights inevitably turn on complex counterfactual and constitutive, able to reform itself. judgements and interpretations of events, ideas, and argu- In contrast, Brettschneider and Eisgruber argue that ments. Eisgruber may be right that “few observers” of the judicial review is sometimes justified by the democratic American Supreme Court “look at the Court’s track record outcomes that it secures—and, in particular, by the abil- and claim, with the benefit of hindsight, that the United ity of judges to protect core democratic rights.7 Thus, States would have been better off during the last fifty years Brettschneider believes that the US Supreme Court “can without judicial review.” But I imagine that many of these act democratically by overriding majoritarian decision mak- would also refuse—as would I—to claim that it was better ing” when “the core values of democracy” are at stake; off with it, because the evidence is too confused and con- and in defense of the right to participate, “when this tradictory to admit of confidence one way or the other. right is more fundamental than the negative impact of a The empirical, conceptual and interpretive demands policy on the core values of democracy.”. Likewise, Eis- necessary to support substantive, or consequentialist, argu- gruber claims that “the institution of judicial review is a ments for judicial review are especially high in the case of sensible way to promote non-majoritarian representative Eisgruber and Brettschneider, who require us to distin- democracy; not surprisingly, it is becoming increasingly guish the relative competences of judges and legislatures popular in democratic political systems throughout the across seemingly similar legal cases. For example, Eisgru- world.”. ber, like Brettschneider, wants to celebrate the ability of Judicial review, according to Brettschneider and Eisgru- American courts to protect voting rights, although claim- ber, is not democratic simply on substantive grounds—or ing that judges are not well-placed to make decisions about in terms of the democracy-promoting consequences that what supports, rather than undermines, democratic polit- ⅜ it is likely to secure. Rather, they argue, it matters that ical institutions.9 Brettschneider thinks Lochner v. New judiciaries be constituted so that they reflect democratic York an instance of illegitimate judicial review, because it values and are likely to promote them. As Brettschneider implicated welfare rights, and these require judgements describes it, “the aim of judicial review is to ensure dem- too complicated for courts to make.10 Eisgruber agrees ocratic outcomes while preserving popular participation that Lochner was a bad decision, but his argument implies in democratic processes,” and Eisgruber attaches a great that this is the sort of question, concerning “a discrete deal of weight to the “democratic pedigree” which ensures liberty-regarding side-constraint upon Congress” which that judges—at least in America—are chosen by elected courts ought to be able to make and should be expected to representatives primarily on political, rather than legal, get right.11 grounds. Their defense of judicial review is, therefore, Even advocates of judicial review, in other words, dis- meant to be democratic, and to distinguish arguments for agree about the best way to think about judicial compe- judicial review from those for benevolent dictatorship. tence, and to classify judicial decisions. Paradoxically, These are subtle, often attractive views. But their weak- therefore, the difficulties of assessing the rights-protecting ness, as a response to Waldron, is their claim that judges record of judicial review are multiplied, not alleviated, by are more likely to protect fundamental rights than legis- more nuanced claims about the special competence of lators. Brettschneider believes that judges are not well judges. These require us to substantiate the superiority of suited