Posner's 'Introduction'

A Summary of pp. 46 - 53 of the Learning Guide

'Doubters' of judicial review argue:

  1. Legislators take the constitution seriously even when it is unlikely to be enforced by judges (eg. impeachment rules). Being blamed for 'unconstitutional' actions is also politically detrimental. In this way the constitution is somewhat self-enforcing.
  2. Similarly: If legislators can't "pass the buck" to the courts, they are more likely to be blamed for unconstitutionality, and will have more of an incentive to take the constitution seriously.
  3. Judicial review discourages public interest in the constitution, as it is seen to be "judges' business". According to Tushnet: what judges use is the dense and technical 'thick constitution', the entire text and all its prior judicial interpretations. What the people revere is a 'thin constitution', a set of basic norms which may not even be part of the Constitution itself.
  4. 'Judicial review is condescending and antipopulist' in that it assumes the people to be incapable of self-governance. Among other things, life tenure for Supreme Court justices contributes to insularity and high-handedness.
  5. When the text is clear, judicial interpretation is unnecessary as any violation would be obvious. When it is unclear, judicial interpretation is likely to be guided by policy. Interpretation 'is bound to be discretionary rather than constrained'.
  6. Judges do not have the resources or expertise to effectively act as lawmakers on the vast range of issues covered by Constitutional law.
  7. Since Constitutional decisions will not be determined by the text or guided by expert knowledge, they will reflect the prejudices of the 'class' from which Judges come. This class is not representative of the average person's views.
  8. Courts do not have the resources to bring unpopular constitutional rulings into effect. They can make a ruling on one issue, but have no control over corollary issues arising from it. (For example, they can expand constitutional rights for defendants, but cannot prevent congress from retaliating by curtailing other rights, and do not have the fact-finding resources to ensure that such procedures as Miranda rights are followed).
  9. Because of the case law system, issues which generate little litigation are ignored by Constitutional scholars, however important the issues may be. Instead, scholars study judicial opinions, written by judges who themselves have no expert knowledge of the issues.
  10. Judicial review politicises the judiciary and judicial selection. A less powerful judiciary would be more efficient and professional.
  11. The legislative process may be a better way of dealing with issues of political morality than the judicial process. Legislatures debate, compromise and vote. They do not purport to reach a 'correct' decision, just the one favoured by the majority. This may be a better way of reflecting the diverse opinions within society than the court process, which attempts to reason to a 'correct' decision, expressed in terms of what is 'right'. In reality, the judicial process is similar to the legislative (judges discuss a case following formal procedures and vote to reach an outcome), the difference being that judges are not elected representatives. Arguments (such as that of Rawls) suggesting the existence of a universal standard of justice by which courts could resolve issues are not sufficient: the problem is not ontological (whether there is objective moral right) but epistemological (how we can demonstrate what, if anything, is objectively right).

Possible responses to these arguments:

  • The idea that it allows courts to be moral leaders is not one of them. There is no evidence that people take moral guidance from the courts.
  • One argument is that litigation around the 'edges' of the Constitution protects against infringement of its 'core'.
  • Another argument is that judicial review protects liberty by decentralising government. Posner notes that this is difficult to test, but seems to think that there wouldn't really be any more violation of liberties in the absence of judicial review, mainly because a) the legislature is unlikely to pass unconstitutional laws when they won't be corrected by courts, and b) when there is sufficient pressure for the legislature to do something unconstitutional, the courts generally lose anyway.
  • Another defence of judicial review is that courts have certain advantages over ordinary lawmakers. Life tenure insulates them from political pressures which impact on the legislature (and which may reflect ignorance, fear, prejudice, selfish interests). Judges are 'screened for competence and integrity', and can bring 'detached and intelligent reflection on policy issues…'. The legislature can also be ineffective for democratic government: it is difficult to repeal laws, the legislature may not reflect a majority view, and the legislature may pass undemocratic laws (eg. restricting the franchise to people with $1M or more). Judicial review may be the only counter to this. As a result, it may make the system more democratic. (Also, an idealised view of congress, as presented by Waldron, is no more realistic than an idealised view of the judiciary.)

Conclusion of the article

  • In light of these favourable arguments, the case against judicial review is inconclusive. The question of whether we're better off with or without it is an empirical one, but difficult to resolve, since we can only speculate on what legislatures would have done if there were no judicial review.
  • Judicial review can certainly have unintended consequences.
  • Also, recognition of equal rights has been driven more by those affected (civil rights movement, women's rights, gay rights) than by the courts, and the courts tend to only discover constitutional rights to equality when such movements are already well established.
  • When constitutional values are seriously threatened, 'the Court has tended to take a back seat'.
  • At other times, its interventions can be seen as 'random impediments to experimental solutions to social problems'.
  • That said, skeptics have not proved that judicial review is overall a bad thing, or even that it is not overall a good thing.
  • But, the arguments show how little we know about the important process of judicial review, and by extension about the (American) legal system itself.