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Why *Judicial* Review: A Preliminary Typology of Scholarly Arguments
Posted: 24 Mar 2013 06:33 PM PDT
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Richard Albert, Boston College Law School
It was perhaps inevitable that the advent of written constitutionalism
would quicken the rise of judicial review. The writtenness of a
constitution creates a ready-made argument in favor of judicial review,
namely that the constitutional text sets the standard against which the
constitutionality of governmental action must be measured, and that any
governmental action to the contrary is invalid. So argued Chief Justice
Marshall in Marbury v. Madison, perhaps the most celebrated judgment
establishing judicial review.
If any rule follows from a written constitution it is that an act
inconsistent with its text is unconstitutional, and that an identifiable
entity must declare the act void.
But there is a missing link in the chain connecting written
constitutionalism with judicial review: must judges necessarily be the ones
given the binding authority to review the constitutionality of a
governmental action?
Modern constitutionalism answers the question in the affirmative. Glancing
around the world to the constitutional practices of liberal democracies, it
appears that the preponderance of regimes adheres to the rule of final
constitutional review by the judiciary. This should perhaps come as no
surprise. Given the choice between constitutional review by an independent
judiciary freed to take a longer view of history disentangled from the
intrusive pressures of electoral politics versus a body more likely to be
motivated by political expedience and the immediacy of the moment, we may
find greater reassurance in the former.
Scholars have made many arguments about why the power of constitutional
review should be held by politically-insulated judges rather than
politically-motivated legislators or, in other words, why review should
be judicial rather than legislative.
It is useful to disentangle the different arguments in favor of judicial
review and to classify them into a preliminary typology.
I should note, however, that this is a preliminary effort to construct a
typology of arguments in favor of judicial review. Comments are more than
welcome to highlight omissions or errors, and to improve this working
classification.
Each of the following represents a different voice advancing the argument
that courts are better suited than legislatures to interpret the
constitution as a final and binding matter. (1) rights defenders; (2)
institutionalists; (3) proceduralists; (4) stabilizers; and (5)
consolidators.
Rights defenders like Charles Black and Erwin Chemerinsky approach the
question of judicial review from the perspective of rights and their
security. Who, they ask, is best situated, given experience and expertise,
to protect the rights entrenched in a constitutional text? The answer from
rights defenders is judges, because judges are freed from political
pressures, they are more competent than legislators to give substantive
content to rights, and they may more fairly adjudicate disputes that arise
from the boundaries of rights. Rights defenders appear to be motivated by
fear of the consequences of majoritarianism, which, to them, would be
utterly “chilling” because “the rights of minorities would be largely left
to the whims of the political majority with severe consequences for racial,
ethnic, sexual orientation, and language minorities as well as criminal
defendants, public benefits recipients, and others.” [Erwin Chemerinsky, In
Defense of Judicial Review: A Reply to Professor Kramer, 92 Cal. L. Rev.
1013, 1013 (2004).] Better, they say, to leave to courts the task of
defending the integrity of our rights.
Institutionalists like Owen Fiss are more squarely concerned with the
competence of the legislature versus the judiciary in constitutional
interpretation. Why might we prefer to privilege the interpretation of
courts over that of legislatures in interpreting the constitution? Their
answer turns on two institutional characteristics that distinguish courts
from legislatures: first, once appointed, judges in liberal democracies are
typically independent of the other political actors, either because they
have life tenure or because they are subject to removal under only the most
exceptional circumstances; and second, the function of judges is to express
and apply our constitutional values.
For institutionalists, the contrast between legislatures and courts reveals
much about their competencies and about the conventions that restrain them.
Judges are subject to a number of limitations on their power: (1) they
exercise their institutional authority only if they are asked to do so;
they do not take up matters of their own choosing; (2) they are required to
give an audience to aggrieved and interested parties; (3) they must respond
to the claims raised before them; and (4) they must justify the judgments
they issue. Unlike legislatures, which “are not ideologically committed or
institutionally suited to search for the meaning of constitutional values,
but instead see their primary function in terms of registering the actual,
occurrent preferences of the people,” courts are expected to adhere to a
different standard. Judges must justify their decisions with public reasons
that “transcend the personal, transient beliefs of the judge or the body
politic as to what is right or just or what should be done.” Their task
“should be seen as giving meaning to our public values and adjudication as
the process through which that meaning is revealed or elaborated.” In this
way, the public values that judges reflect in their judgments are
themselves important power-limiting constraints on the authority of courts.
[Owen Fiss, The Supreme Court 1978 Term—Foreword: The Forms of Justice, 93
Harv. L. Rev. 1, 10, 13, 14 (1979).]
What proceduralists like John Hart Ely and Cass Sunstein seem to value is
popular participation in the democratic process. They are sensitive to the
criticism that judicial review undercuts the principle of majority rule,
but they nonetheless accept judicial review as a necessary feature of
democratic government. But how can proceduralists defend a position that
values both participatory democracy and judicial review? For
proceduralists, judicial review serves the purpose of facilitating the
expression of majority will and they defend judicial review only to the
extent that it enhances the democratic process. We ought to celebrate
judicial review, they say, when courts “proceed[] in a way that is
catalytic rather than preclusive, and that is closely attuned to the fact
that courts are participants in an elaborate system of democratic
deliberation.” [Cass R. Sunstein, One Case at a Time: Judicial Minimalism
on the Supreme Court 263 (1999).] The objective is to promote
decisionmaking by democratically accountable bodies, and to rely on courts
to ensure that democratic majorities reach decisions by truly democratic
means.
This proceduralist position on judicial review argues that courts should
use their powers of constitutional review to police the fairness of the
mechanisms that allow people to express their views. Judicial review, on
this view, is appropriate when, for instance, a class of persons blocks the
voiceless, powerless or disadvantaged from accessing the apparatus of
social change, or when elected representatives act hostilely or
prejudicially toward a minority group by denying members of that group
equal treatment and equal opportunity to participate in the democratic
process. In those cases—specifically cases requiring “unblocking stoppages
in the democratic process”—it is the role of courts to correct those
deficiencies in the representative system of government and to create space
for those groups to be heard alongside the other voices that commonly
participate in public discussions. [John Hart Ely, Democracy and Distrust
7, 103, 117 (1980).]
In contrast to rights defenders, institutionalists and proceduralists,
stabilizers are most concerned with how to create and subsequently ensure
stability in the institutional interrelationships among the judiciary, the
legislature and the executive. How can we resolve disputes in a way that is
reliable, predictable, and authoritative? How, in short, can we foster
stability in constitutional adjudication and interpretation? Those are the
questions that inform how stabilizers approach judicial review. Their view
is represented by United States Supreme Court Justice Louis Brandeis, who
once wrote, in dissent, that “stare decisis is usually the wise policy,
because in most matters it more important that the applicable rule of law
be settled than that it be settled right.” [Burnet v. Coronado Oil & Gas
Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting)] That we achieve
settlement, leaving little up for dispute, is what stabilizers hope to
achieve. But stabilizers do not value settlement for the sake of settlement
alone. Stabilizers pursue settlement for the sake of ensuring stability in
the constitutional order.
Stabilizers begin from the proposition that the core function of law is
settle things. In the context of judicial review, stabilizers regard the
judiciary’s role favorably because its supremacy in constitutional
interpretation extinguishes doubt about the validity or legitimacy of its
constitutional judgment. Stabilizers argue that, “to the extent that the
law is interpreted differently by different interpreters, an overwhelming
probability for many socially important issues, it has failed to perform
the settlement function.” [Larry Alexander & Frederick Schauer, On
Extrajudicial Constitutional Interpretation, 110 Harv. L. Rev. 1359, 1377
(1997).] Deferring to the judgment of the judiciary on contested
constitutional meaning helps bring stability to the polity. This is a
salutary result because “in a world of moral and political disagreement,
law can often provide a settlement of these disagreements, a settlement
neither final nor conclusive, but nevertheless authoritative and thus
providing for those in first-order disagreement a second-order resolution
of that disagreement that will make it possible for decisions to be made,
actions to be coordinated, and life to go on.” [Larry Alexander & Frederick
Schauer, Defending Judicial Supremacy: A Reply, 17 Const. Commentary
455, 467 (2000)]
Consolidators like Bruce Ackerman differ from others on one important
ground: they accept the criticism that judges may possess less democratic
legitimacy than legislators but they see courts as nation-building
institutions. For consolidators, democracy demands uniting disparate
individuals as citizens bound to themselves and to their state. One way to
do this, for consolidators, is to create national myths that derive from
national institutions, for instance a constitution.
Consolidators see courts as institutions whose role is to discern,
synthesize, and subsequently reflect the political and cultural norms that
citizens and political actors shape in the course of democratic processes.
The court’s role here is to take a longer view than what legislators may
allow themselves in the day-to-day politics that occurs in the trenches of
political negotiation and lawmaking. Courts are better at this function
than legislators, say consolidators, because courts, as final and binding
arbiters of constitutional meaning, can better identify and defend the
nation’s existing constitutional settlements from changes in constitutional
meaning that have not yet met with the public’s endorsement or acquiescence.
All five groups agree that judges, not legislators, should have the power
to interpret the constitution as a final and binding matter. Rights
defenders, institutionalists, proceduralists, stabilizers and consolidators
all defend judicial review as consistent within the democratic tradition.
Even though judicial review may not align with the majoritarian bases of
democracy, these five groups nonetheless make a strong case that democracy
either means more than majoritarianism, or that it demands an institutional
check to police the decisionmaking processes of majorities, or that
democracy demands respect for other values namely predictability,
reliability, and stability.
These are strong arguments as to why courts should have the power of
constitutional review. It is another matter altogether whether they are
convincing.
Suggested Citation: Richard Albert, Why Judicial Review: A Preliminary
Typology of Scholarly Arguments, Intl J. Const. L. Blog, Mar. 25,
2013, available at: http://www.iconnectblog.com/2013/03/why-judicial-review.
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