1 Are There Good Procedural Objections to Judicial Review? Kathleen Doherty Ryan Pevnick Vanderbilt University New York University According to traditional arguments, judicial review is a legitimate element of representative government because it allows decisions about individual rights to be made in a venue more insulated from electoral pressure than are legislative institutions. The hope is that this insulation helps generate better outcomes than would a system of legislative supremacy. The relevance of this outcome-oriented perspective has been challenged on four main grounds: majoritarian, participatory, disagreement-based, and methodological. The first two contend that judicial review is procedurally illegitimate, while the second two argue that we should assess judicial review on procedural grounds. We show that none of these arguments undermine the traditional insulation-based and outcome-oriented approach to the question of judicial review s legitimacy. Historically, the most important argument in favor of judicial review stresses the value of insulating the judiciary from electoral forces. Alexander Hamilton emphasized this theme in Federalist #78, explaining that if the courts are to be considered the bulwarks of a limited Constitution against legislative encroachments, then the independence of the judiciary is: requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which [may] occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. (Hamilton, Madison, and Jay  2003, 381) The insulation of justices from political pressure has in the time since Hamilton wrote often been appealed to as central to the case for judicial review. We will call the claim that judges can help protect individual rights and correct distortions in the democratic process because of their institutional position and relative insulation from electoral pressure the insulation argument. In recent years, a number of prominent philosophers, historians, and legal theorists have challenged the relevance of the insulation argument. These critics deny that judicial review should be primarily assessed by examining whether or not such electoral insulation helps generate preferable outcomes. This attack proceeds on four main fronts. 1) Majoritarian: Critics argue that judicial review is illegitimate because of its antimajoritarian nature. 2) Participatory: Critics argue that judicial review is illegitimate because it takes final decisions on important political controversies out of the hands of ordinary citizens. 3) Disagreement: Critics argue that disagreement about which outcomes are preferable precludes outcome-based assessment of the institution. 4) Methodological: Critics argue that the legitimacy of judicial review depends on whether it is part of the institutional framework of a well-ordered democratic society. The majoritarian and participatory criticisms suggest that the insulation argument misses the point because judicial review is illegitimate for procedural reasons. Meanwhile, criticisms based on concerns about disagreement and methodology suggest that the perspective elaborated by the insulation argument is conceptually misguided and that the institution should be instead assessed on procedural grounds. Like the scholarly literature, public controversy about judicial review also tends to focus on the procedural characteristics of the institution. The goal of this article is to show that none of these arguments succeed and thereby help vindicate the view that the insulation argument provides the best standpoint from which to assess the legitimacy of The Journal of Politics, Page 1 of 12, 2013 doi: /s Ó Southern Political Science Association, 2013 ISSN
2 2 kathleen doherty and ryan pevnick the institution. By doing so, the article lends credence to the view that the legitimacy of judicial review is a function of the outcomes generated by a system of governance that includes the institution as compared to the alternative of legislative supremacy. 1 Notice that we do not offer an empirical assessment of the insulation argument and, so, remain agnostic on the ultimate legitimacy of judicial review (or, better, the conditions under which particular forms of judicial review would be legitimate). Instead, our goal is to show that the initial plausibility of procedural objections depends on a failure to carefully assess the normative significance of the concepts (such as majoritarianism) on which they depend. The Insulation Argument This section aims to give a slightly fuller account of the insulation argument and its limits. As we have seen, the argument claims that systems of governance that include judicial review can help protect individual rights and correct distortions in the democratic process. Judicial review may help fulfill these goals through two different mechanisms both of which are connected to the institutional position in which judges are embedded. First, judicial review insulates judges from electoral pressure such that they need not consider public opinion to the same extent as legislators. Legislators are directly constrained by an electorate that has little incentive to come to informed views on controversial issues. By contrast, because judges act from a position of relative professional security, they can more easily depart from public opinion and organized interests to issue decisions based on their understanding of the merits of the case. Moreover, because their positions are much more likely than those of ordinary citizens to swing outcomes, they have greater incentive to cast informed votes(eisgruber 2001). Second, the insulation argument claims that differences between legislative and judicial behavior extend beyond the immediate effects of placing agents in an environment less constrained by electoral pressure. Inhabiting a position in the judiciary also affects the way that agents conceive of their role. On this view, institutions are a source of distinctive political purposes, goals, and preferences (Gillman and Clayton 1999, 4). Features of the judicial role may be internalized by those holding such positions in a way that 1 Following their own practice, we often call skeptics of judicial review advocates of legislative supremacy. Notice, however, those who disagree do not seek a system of judicial supremacy, but rather one which retains an important role for the judiciary. systematically affects how they develop preferences and aim to realize them (cf. Gillman 1999). For example, the importance of precedent and constitutional rights may make rights-claims more salient in a judicial environment than they would be in legislative venues. Likewise, the history of the institution and past decisions such as Justice Stone s Carolene Products footnote may affect how judges understand their position and thereby influence decision making. Similarly, decisions that are now widely discredited (such as Dred Scott, Lochner,and Korematsu)mayheightenthesalienceofcertaintypesof risks. The decision-making process of judges is different from legislators, then, both because of the relative freedom judges are given from electoral pressure and because their institutional position leads them to conceptualize problems and formulate preferences in somewhat different ways than do legislators. These considerations help explain the history of ideologically diverse coalitions of judges striking down bipartisan legislation (Keck 2007). The insulation argument claims that it is preferable for some decisions to be made in a judicial venue because it can help better protect rights and ease distortions in the democratic process. In regards to rights, it claims that it is preferable for decisions to be made in a judicial environment because this highlights the importance of rights claims, incentivizes them to come to informed positions on controversial issues, and to at least some degree insulates them from popular pressure. So, the rights-based component of the insulation argument suggests that judicial review can be part of an effective bulwark against popular government s potential for tyranny of the majority. Additionally, the argument claims that judicial review can help correct distortions in the democratic process. For example, there may be legislation in regards to which all elected representatives have similar interests not shared by the broader citizenry (Ely 1980). Examples include legislation related to term limits, campaign finance, and gerrymandering. In such cases, advocates of the insulation argument claim that it is useful to have an organ of government that checks the power of elected officials (Klarman 1997). Likewise, legislative politics might unfairly favor some groups over others, and judges insulation from electoral pressure may allow them to act as a corrective force. 2 The key claim of the insulation argument, then, is that there are reasons grounded in the ideals of 2 Ironically, given Carolene s focus on discrete and insular minorities, it may be large and diffuse majorities that get short shrift in the legislative process (Ackerman 1985).
3 judicial review 3 individual rights and democratic governance that speak in favor of having certain kinds of policy decisions made in an environment in which actors are immersed in a legal framework and to some degree insulated from electoral pressure. The purpose of this article is to argue that the legitimacy of judicial review depends on the truth of the insulation argument s claim and, so, on an outcome-based assessment of the institution. Before proceeding, three limits of the insulation argument are worth emphasizing. First, the argument does not hinge on the strong claim that judges are impervious to outside pressure or likely to heroically hold out against committed national majorities to protect the rights of embattled citizens. Advocates need only claim that a system of governance that incorporates judicial review is likely to better protect individual rights than a system of governance that puts such decisions solely in the hands of elected officials. This claim is entirely compatible with acknowledging both that the judiciary s power to execute decisions is limited (Rosenberg 2008) and that judges pursue their goals strategically within the constraints imposed by other political actors (Epstein and Knight 1998; Maltzman, Spriggs, and Wahlbeck 2000). Second, it is often mistakenly thought that the perspective set out by the insulation argument is undermined by empirical evidence showing that decisions of Supreme Court justices can be explained by their ideological preferences (cf. Friedman 2005; Segal and Spaeth 2002). In fact, evidence connecting judicial decisions to ideology reveals that the institution often succeeds in generating space for justices to make decisions of their own. Although there is no guarantee in regards to the quality of those decisions, such evidence shows that judges are indeed free enough from electoral pressure that their understanding of the merits of the case substantially affects their decisions. A different version of the objection holds that because judges are already selected on the basis of ideological agreement with elected officials, there is no reason to expect their positions to differ from that of legislators (Dahl 1957). Although it is true that the selection process largely ensures that judges fall within a range of views palatable to the majority coalition, this does not guarantee that they will adopt positions on future cases identical to those taken by elected officials. Instead, as the insulation argument emphasizes, judges and legislators face different constraints and inhabit different institutional roles. For these reasons, they may endorse different positions on specific cases even if their general ideological commitments are identical (Graber 1993; Keck 2007). So, the results of the selection process cannot themselves provide reason to abandon the normative perspective set forth by the insulation argument. Third, it does not advance debate to simply point out that justices have made deplorable decisions; obviously, legislatures have also passed rights-violating legislation. Because no institution can guarantee just outcomes, the question is whether there are as the insulation argument claims systemic features of judicial review that, over the long run, allow systems of governance that include it to better approximate just outcomes. Majoritarianism Having sketched the insulation argument, we now turn to the first criticism of its relevance. In particular, it is often thought that judicial review is illegitimate regardless of the outcomes it generates because it is antimajoritarian. Indeed, anxiety about the antimajoritarian nature of judicial review is omnipresent both in the literature and the public controversy surrounding the institution (cf. Bickel 1962, 16; Klarman 1997, 495). However, assessing the significance of the antimajoritarian nature of judicial review requires an examination of why majoritarianism is valuable. In this section, we distinguish between instrumental and intrinsic justifications of majoritarianism and then argue that neither type of explanation of majoritarianism s value provides reason to discard the perspective elaborated by the insulation argument. If majoritarian institutions are favored for instrumental reasons, an examination of the insulation argument remains crucial to any assessment of judicial review s legitimacy. This is because instrumental arguments will need to show that majoritarian institutions really are the best mechanism for realizing the specified goal. Therefore, an evaluation of the institution must turn on an examination of the effects of insulating some decision makers from electoral pressure. Meanwhile, intrinsic justifications of majoritarianism speak against legislative supremacy as well as judicial review because representative institutions are themselves deviations from majoritarianism. So, contrary to common assumption, we will argue that neither intrinsic nor instrumental justifications of majoritarianism provide reason to prefer legislative supremacy to systems of governance that include judicial review. Instrumental Justifications of Majoritarianism There are two main instrumental justifications for majoritarianism: status-based and epistemic. Status-based justifications say that we should select
4 4 kathleen doherty and ryan pevnick those institutions that best respect the equal status of citizens. For example, Waldron argues that majoritarianism is a principle of equal respect, because it gives each individual s vote a greater chance of determining the outcome than available alternatives (1999a, 160). On such views, we weigh votes equally and reward the side with more votes in order to respect the equal status of citizens. However, if we are devoted to respecting this status, we must not only organize our procedures in a way that reflects this commitment but also attempt to ensure that the basic interests of citizens are protected. After all, the protection of such interests (including freedom of religion, due process, and the like) is very important to respecting the equal status of citizens. Once we accept that respecting the equal status of citizens carries with it substantive requirements regarding appropriate treatment, there is reason to accept antimajoritarian institutions if they contribute to the satisfaction of these requirements. Moreover, this reason is grounded in respect for the very same status that provides reason to, all else equal, accept majority rule. So, if the insulation argument is correct that judicial review produces policies that better protect the equal status of all, then the very reasons driving us in the first instance towards majority rule actually speak in favor of judicial review. 3 A second instrumental justification for majoritarianism is epistemic. Such views claim that there are reasons for thinking that majoritarian institutions are more likely than alternatives to identify correct outcomes. Although Condorcet s Jury Theorem is the best-known epistemic argument for majority rule, the idea that aggregating the views of the broader society yields more reliable judgments than alternatives goes back at least to Aristotle s Politics. The Jury Theorem represents the idea formally by showing that if each individual is more likely than not to be correct, then the likelihood of the group s majority vote selecting the correct answer quickly approaches certainty as the size of the group increases. Like status-based arguments, epistemic arguments make the value of majoritarian institutions instrumental. While the status-based argument makes their value turn on their ability to treat citizens as equals, the epistemic argument makes the value of majoritarian procedures depend on their ability to produce the correct outcomes. However, if the insulation argument is correct that there are certain instances in which better outcomes can be produced by giving decision-making power to individuals who are insulated from electoral pressure, then those who advocate for majoritarian procedures on epistemic grounds cannot object. Because both of these arguments render support for majoritarian procedures contingent on their ability to produce particular kinds of outcomes, they both must allow that if the insulation argument is correct there are adequate reasons to deviate from pure majoritarianism and support judicial review. Therefore, if the justification of majoritarianism is instrumental, then the legitimacy of judicial review importantly depends on an assessment of the insulation argument. So, if there are majoritarian reasons to dismiss the insulation argument, they must instead be grounded in an intrinsic justification of majoritarianism. Intrinsic Justifications of Majoritarianism Intrinsic justifications of majority rule hinge on features of the majoritarian process itself rather than outcomes that such processes are likely to bring about. Critics of judicial review often invoke May s Theorem as an intrinsic argument for majority rule. For example, Waldron says that the fairness/equality defense of the majority-decision rule is well known and cites May s Theorem (2006, 1388; 4 Waldron 1999a, 148). Richard Bellamy does the same (2008, 15). This theorem shows that majority rule is the only decision rule that satisfies four intuitively attractive conditions: decisiveness, anonymity, neutrality, and positive responsiveness (May 1952). Although this is not the occasion for a thorough examination of the theorem, two main points should suffice to highlight its inability to provide reason to prefer systems of legislative supremacy to those that also include judicial review. First, the theorem does not justify ceding power to representative institutions. May s Theorem applies to cases in which all relevant individuals vote on a matter of substantive controversy. This, however, is very different from the indirect arrangements of representative democracy in which citizens vote for officials who get standing in legislative proceedings that resolve substantive controversies. Critics of judicial review tend to treat this difference as trivial. For example, Waldron claims that the system of representation provides a reasonable approximation of the use of [majority decision] as a decision-procedure among the citizenry as a whole and, so, assumes that if May s Theorem provides reason to accept direct democracy, then it must also provide justification for rule 3 For similar responses to the status-based argument, see Dworkin (1996) and Freeman (1990). 4 Hereafter, references to this article are by page number only, so Waldron (2006, 1388) is (1388).
5 judicial review 5 by representative institutions (1388). Unfortunately, critics of judicial review fail to explain the sense in which a representative system can be thought of as a reasonable approximation of majoritarianism amongst the entire citizenry. Representative institutions are not an approximation of the kind of majoritarian procedure marked out by May s Theorem. In addition to the indirect nature of representative institutions (which give citizens only one vote with which to hold representatives accountable on many issues of substantive import), representative institutions virtually always incorporate substantial hedges against majoritarianism. These hedges come in the form of supermajority rules, executive vetoes, bicameralism, seats representing different-sized constituencies, and so on. 5 Moreover, the deviations from majoritarianism built into representative institutions are celebratedbyadvocatesoflegislative supremacy as important parts of the appeal of those institutions (Waldron 2012). So, by design, representative institutions contain enormous deviations from the kinds of procedures that May s Theorem identifies as having intrinsic virtue. Likewise, there is no reason to believe that the outcomes produced by a representative system will approximate those that a direct majoritarian system would produce. After all, it is well-known that representative systems employing different aggregation mechanisms can produce very different outcomes even given the same set of preferences (cf. Riker 1988). There is no basis for confidence, then, that any particular representative system will track the results that would be produced by any particular direct majoritarian system. Moreover, the very reason that representative government is typically advocated is to avoid the outcomes likely to be produced by a system of direct democracy. For example, James Madison argues that the role of representative institutions is to: Refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interests of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves...(hamilton,madison,and Jay  2003, 44) 5 Over 80% of national legislatures check simple majority rule either via executive veto or bicameralism (Przeworski 2010, 143). So, Madison s claim is that representative institutions are useful precisely because they are likely to beget outcomes superior to those produced by a direct democracy (Manin 1997). Typical lines of argument for this claim include the following: 1) Elections select members of the polity that are particularly well-suited for legislative work; 2) Representative institutions make possible a division of labor that allows those making decisions to gain expertise; and 3) The deliberative process possible in a chamber of relatively limited size allows legislatures to come to better decisions than could the public as a whole. So, the justification for representative government is precisely that it will secure better outcomes than would asimplesystemofmajorityrule.insofarasopponents of judicial review are also advocates of representative institutions, they cannot reasonably claim to be committed to majoritarianism for intrinsic reasons. So, because opponents of judicial review already accept deviations from majority rule for outcome-based reasons, they cannot reasonably impugn judicial review simply because it is a departure from majoritarian norms. Even if we agreed to ignore the false analogy between direct and representative institutions on which appeal to May s Theorem rests, there is still a second reason why that theorem does not justify a preference for legislative supremacy. To see this, it is important to notice that the theorem assumes that a fair decision is defined by a fair aggregation of the relevant preferences and then proves that only a majoritarian procedure can aggregate preferences consistent with the constraints that define fairness. Unfortunately, this begs the question because this preference-dependent conception of fairness is highly controversial in the current context. The view that motivates the insulation argument holds that the right outcome is not defined by the fair aggregation of preferences, but instead exists apart from such preferences. For example, imagine that a majoritarian system bans members of a minority from holding property on the grounds that their religious beliefs are widely thought to be offensive. The fact that the process by which the preferences were aggregated satisfies May s conditions only shows that the system effectively aggregated the discriminatory preferences of the group. The legislation thereby satisfies the conception of fairness adopted by May s Theorem, but not the more substantive conception of fairness endorsed by advocates of the insulation argument. A view that defines fair outcomes in terms of a substantive
6 6 kathleen doherty and ryan pevnick conception of justice (rather than in terms of the optimal aggregation of preferences) is not undermined by the fact that only decisions made via majority rule satisfy the conditions laid out by May s Theorem. Thus, appeal to May s Theorem is insufficient in the absence of a defense of the preference dependent conception of fairness on which it rests. In sum, the theorem proves that only majority rule satisfies a particular conception of fairness, but to successfully attack judicial review on this basis, one would need to explain (a) how the representative institutions that are alternatives to judicial review satisfy the requirements of majoritarianism laid out by the theorem and (b) why the conception of fairness assumed by the theorem is compelling in these circumstances. Meanwhile, if we accept an instrumental justification of majoritarianism, the legitimacy of judicial review turns out to hinge on the truth of the insulation argument rather than independent procedural considerations. Therefore, neither intrinsic nor instrumental justifications of majoritarianism provide reasons to set aside the outcome-oriented assessment urged by advocates of the insulation argument. The Participatory Concern Instead of antimajoritarian concerns, procedural criticisms of judicial review sometimes hinge on a participatory or voice-based complaint. Waldron, for example, proclaims the importance of allowing the people themselves to decide finally controversial policy questions, as opposed to allowing the view that finally prevails to be that of the judges ( , 1353). In this view, living in a democratic society requires allowing citizens to determine the laws under which they will live. Unfortunately, it is somewhat obscure precisely why it is objectionable to put the final 6 decision on important questions in the hands of judges. As in the case of the antimajoritarian concern, justifications for the participatory requirement could be either intrinsic or instrumental. However, intrinsic justifications cast doubt on representative institutions as well as judicial review, and instrumental justifications cannot preclude judicial 6 The idea of a final say is misleading. Although it evokes the idea of a decision that cannot be amended, judicial decisions are not final: we do not live under a legal regime guided by Dred Scott or Lochner. Additionally, even if one is persuaded that judges ought not to be able to make decisions that cannot be overruled by elected officials, this provides an objection only to the conjunction of judicial review and extremely difficult rules for constitutional amendment. review if its inclusion begets superior outcomes. So, neither interpretation of the participatory criticism provides a procedural reason to support legislative supremacy. First, we might have intrinsic reasons for insisting that final decisions be left to the people themselves. This view is suggested by Waldron: In countries that do not allow legislation to be invalidated in this way, the people themselves can decide finally, by ordinary legislative procedures whether they want to permit abortion, affirmative action, school vouchers, or gay marriage. (1349; see also Kramer 2004) Likewise, Tushnet writes that the basic principle, of course, is that people ought to be able to govern themselves (2005, 59). These are intrinsic arguments because they claim that such participation is valuable in itself rather than because it will produce better outcomes. But, again, there is an enormous difference and one that is terribly obscured by critics of judicial review between leaving such matters to be resolved by a body of elected officials (to which almost all citizens will never have the experience of belonging) and allowing them to be resolved by the people themselves. As we have noted, representative institutions are designed to select a small minority of distinctive citizens who then rule together via a set of institutions rife with deviations from majoritarianism. So, if the intrinsic interpretation of the voice-based concern is compelling, we should follow direct democrats in insisting that when we talk about the people themselves, we embrace institutions (such as referenda) that actually do enfranchise more than a very tiny minority. In order to avoid this implication, those advancing participatory objections sometimes embrace a weaker position. For example, Corey Brettschneider argues that the intrinsic democratic value of majoritarian procedures... requires that actual persons have a role in deciding which laws will govern them (2010, 142). By weakening the requirement in a way that insists only that citizens have a role in deciding on the laws that govern them, this interpretation avoids pressure to endorse institutions of direct democracy. However, this weaker version of the participatory objection cannot sustain a criticism of judicial review. After all, systems of governance that include judicial review also include representative institutions that give citizens a role in deciding which laws will govern them. So, intrinsic participatory requirements are either so strong that they force advocates to abandon representative institutions as well as judicial review or so weak
7 judicial review 7 that they fail to provide reason to worry about systems of governance that include judicial review. What has not been provided, then, is a participatory objection that provides reason to prefer a system of legislative supremacy to systems of governance that include judicial review. The most prominent critics of judicial review do not advocate moving towards direct democracy by, for example, allowing referenda on important issues. This suggests that the reasons that lead them to insist that justices not make the final decision on controversial policy questions are instrumental. But, once again, if the criteria are instrumental, then critics of judicial review must allow that if incorporating the institution into the larger system of governance in a society helps protect individual rights, then it is not objectionable to include judges in the decision-making process. Accordingly, the success of the participatory criticism ends up just hinging once again on the truth of the insulation argument. So, both participatory and majoritarian criticisms of judicial review either see their favored procedures as having intrinsic or instrumental importance. If procedures are instrumentally important, we cannot know whether or not judicial review is legitimate until we ask with advocates of the insulation argument whether or not the insulation from electoral pressure afforded by the institution improves decisions about individual rights. Meanwhile, appeals to the intrinsic virtues of participatory features either require us to abandon both representative institutions and judicial review or fail to provide reason to object to either. It is important to emphasize that this discussion does not imply that a system in which all important policy decisions are made by appointed officials is unobjectionable. Instead, in regards to many public policy decisions, there are obvious and important outcome-based reasons to ensure that decisions are made by agents whom the public can hold accountable. This helps ensure that political leaders have the information they need to make effective decisions and self-interested reasons to do so (Sen 1994). Advocates of the insulation argument can accept this point because it does not preclude the possibility that some subset of decisions is better made in an environment deliberately held further apart from electoral pressure. 7 If correct, it does not undermine reasons that speak in favor of representative 7 Those writing in the tradition of Carolene Products have long held that legislative institutions are not well designed to make certain kinds of decisions (Ackerman 1985; Ely 1980). institutions, but instead implies that those reasons do not extend to all policy decisions. 8 Disagreement and Outcome-Based Assessment We have maintained that the insulation argument survives the majoritarian and participatory challenges levied against its relevance. If this is correct, the dispute between legislative supremacy and systems that include judicial review should turn on an assessment of the effect that incorporating judicial review has on policy outcomes. Instead of fretting about the procedural legitimacy of the institution, we should ask: does including a legal institution somewhat more insulated from electoral pressure within the policymaking process achieve the hoped for results? Rather than attempting to answer this question or to defend judicial review, we have only tried to show that the legitimacy of the institution depends on the answer to this question. In approaching it, we might try to compare countries with and without judicial review, control for differences between them, and then ask: does judicial review help protect individual rights (cf. La Porta et al. 2004)? There are two barriers to such an approach. First, it presents enormous technical measurement problems in terms of isolating the differences in outcomes due solely to differences in judicial practices (as opposed to differences in political culture, electoral rules, etc.). Second, and much more fundamentally, even if we could say with certainty what kind of effects introducing judicial review would have, we would still disagree in our evaluation of such effects. In the absence of agreement on the correct account of rights, a comparative institutional study cannot itself resolve disputes about the legitimacy of judicial review. Although such disagreement renders empirical work insufficient to settle disputes about the legitimacy of judicial review, it is worth stressing that such work nevertheless enriches our understanding of how the institution operates and, so, helps inform assessments of the insulation argument. It can, for example, tell us 8 Notice that although we are committed to an outcome-based assessment of judicial review, we are not necessarily committed to a purely instrumental justification of democracy. Our position is also consistent with accounts that value democracy for both instrumental and procedural reasons so long as the ordinary participatory procedures accompanying representative institutions (even in systems that include judicial review) satisfy the relevant procedural requirements.
8 8 kathleen doherty and ryan pevnick about the historical record of the judiciary in resisting the other branches of government (cf. Casper 1976; Dahl 1957; Keck 2007; Rosenberg 2008) and the effect of different institutions on judicial behavior (cf. Hall and Brace 1999; Huber and Gordon 2004; Stone Sweet 2000). So, an assessment of judicial review ultimately requires both an empirical debate about the likely effects of judicial review and a normative debate about the desirability of different types of outcomes. However, the fact that there is disagreement as to which outcomes are desirable is often thought to have important consequences for the evaluation of judicial review. Critics of judicial review argue that because of such disagreement, we cannot use a results-driven test to assess judicial review, and should instead rely on procedural considerations in evaluating the institution (Waldron 1998, ; Kramer 2004; Waldron 1999b, ). The thought is that an outcome-based test cannot help adjudicate controversy over the legitimacy of judicial review in an environment in which there is disagreement about what constitutes ajustoutcome.toassessthisclaimabouttheimplications of disagreement, it is helpful to consider an analogy. Assume that a group of us needs to come to a decision on which of several colleagues should be granted tenure. There is disagreement as to what types of outputs count in favor of candidates. Some of us think that student evaluations of teaching are important, while others think that they reward characteristics (such as generosity with grades) that are irrelevant to a candidate s merit. Some think that the quantity of scholarship produced is an important consideration, whereas others think that we should focus overwhelmingly on the quality of the scholarship. So, we differ on judgments about particular candidates at least in part because we disagree on the value of different types of outcomes. Notice, though, that we would not conclude that we should instead make tenure decisions on the basis of process-based parameters on which we can more easily agree say, which candidate has worked the longest hours or attended the most teaching workshops. These criteria, though they may be assessed with less disagreement, do not resolve the question of which candidate is best suited for tenure. Although we disagree about which results are to count favorably, we may well have been correct initially that candidates should be judged in terms of an evaluation of their professional output. So, the fact that we disagree about which results are to count in favor of a candidate or institution does not show that we cannot use a results-driven test. Instead, it suggests that we should carefully deliberate and come to our best judgment regarding the appropriate criteria. A determined opponent may continue to criticize outcome-based assessment on the grounds that further deliberation about desirable outcomes is extremely unlikely to eliminate disagreement. On this view, because such disagreement is a permanent feature of disputes regarding judicial review, we should recognize that the debate is intractable and set it aside. However, most complex and important political questions are likely to feature continuing disagreement. Consider, for example, the following controversies: d d d Why do democracies tend not to go to war with one another? What role do natural resources play in economic development? Why did democracies emerge in some states and not others? Disagreement surrounding these empirical questions is just as unlikely to see conclusive resolution as the disagreement surrounding important normative questions. The likelihood of continuing disagreement does not provide reason to abandon arguments about such questions. Instead, such argument spurs us to clarify disagreement and develop more refined views. If we set aside questions that are unlikely to see conclusive resolution, we will have to ignore political life s most important questions and forfeit gains in understanding that emerge from continuing disagreement. So, persistent disagreement about which outcomes are desirable does not provide reason to evaluate judicial review according to procedural criteria or to abandon discussion of the legitimacy of judicial review altogether. Methodological Criticisms Given that the insulation argument hinges on the willingness of citizens to violate the rights of their compatriots, it might seem that judicial review is only appropriate for defective democracies. A position of this sort is defended most carefully by Waldron, who allows that there might be circumstances that render judicial review legitimate for the time being but suggests that it is worth figuring out whether that sort of defense goes to the heart of the matter (1406 and 1352). So, one way opponents of judicial review respond to the insulation argument is by saying that this account only shows that the society in question represents a non-core case in which unfortunate
9 judicial review 9 pathologies render judicial review necessary. This view stresses that judicial review is not the kind of procedure that a well-functioning democratic society should accept. Waldron distinguishes between core and non-core cases, suggesting that judicial review is illegitimate in the former. There are four main characteristics of core cases ( ). Such societies have (1) legislative institutions in good working order; (2) an established and independent judiciary in good working order; (3) a strong commitment to the importance of individual and minority rights; and (4) disagreement about precisely what rights there are and what they amount to (1367). Assumptions of this kind are common elements of the attack on judicial review (cf. Tushnet 1999, 107 8; Tushnet 2005). Unfortunately, there is an ambiguity in the deployment of the distinction between core and non-core cases that allows it to be understood in at least two different ways. First, sometimes the suggestion is that core cases are normal cases, and the assumptions invoked are simply characterizations of typical democratic societies. Second, sometimes the suggestion is that the distinction between core and non-core cases is methodological. The idea is that we should first determine which institutions we would have in an ideal or well-ordered society and only secondarily consider how the existence of particular pathologies or shortcomings might affect our judgments about appropriate institutions. Neither interpretation can vindicate skepticism about the legitimacy of judicial review in modern democratic societies. The former interpretation hinges on an empirically indefensible characterization of the societies in question, and the latter interpretation misunderstands the appropriate role of idealized assumptions in normative debate. Core Cases as Normal Cases The suggestion is sometimes that core cases are simply typical cases. Waldron says that arguments about the importance of judicial review in societies in which the commitment to rights is tenuous and fragile... [do] not go to the heart of the case that is made for judicial review in countries like the United States, Britain, or Canada (1366). Likewise, he insists that the assumption of a general commitment to rights in society is fairly easily satisfied (1402) and applies in most circumstances (1352). Additionally, he makes clear that his argument is meant to apply to existing democracies; for example, he applauds Tushnet s proposed constitutional amendment abolishing judicial review (Tushnet 2005; Waldron 2005). The assumptions that people are strongly committed to individual rights and that legislative institutions serve to effectively institutionalize these commitments are central to criticisms of judicial review. Tushnet, for example, says that one would have to be far more skeptical than I think sensible to assume that senators would routinely disregard the thin Constitution s values (1999, 107). Likewise, Waldron says: I assume that the commitment to rights is not just lip service and that the members of the society take rights seriously: They care about them, they keep their own and others views on rights under constant consideration and lively debate, and they are alert to issues of rights in regard to all the social decisions that are canvassed or discussed in their midst. (1365) The empirical literature suggests that there is substantial reason to worry about the accuracy of these characterizations. In a review of the literature, Kinder describes American citizens as wretchedly informed (1998, 785; Delli Carpini and Keeter 1997). Recent polls reinforce this view: in 2012, only 40% of citizens knew that Republicans had a majority only in the House; just 61% recognized them as the party in favor of restricting abortion; and 29% could not even identify them as the more conservative party (Pew 2012a, 2012b). Likewise, the public is often unaware of important political developments. For example, even in the midst of campaigns and in amultiplechoiceformat,only16%wereawarethat more than half of TARP funds had been repaid, and only 39% recognized that the federal government spends more on defense than on education, Medicare, or interest on the debt (Pew 2010). It is very difficult to see how such empirical accounts of citizen knowledge can be made consistent with the idea that citizens keep important political issues under constant consideration and lively debate such that they are alert to issues of rights in regard to all the social decisions that are canvassed or discussed in their midst. Whereas judges (1) know that their views may make an important difference to how controversies are decided and (2) approach cases from an institutional position that highlights the importance of rights claims, ordinary citizens have little incentive to become informed about cases bearing on the rights of others. Empirical evidence bears this out, showing that citizens often frame controversial political issues in terms of evaluations of the groups involved, rather than in terms of civil liberties (Chong 1993; Kinder and Kam 2010; Sullivan et al. 1993, 51 52). This is not just a substantive disagreement about the appropriate conception of rights; instead, it is a tendency not to be alert to issues
10 10 kathleen doherty and ryan pevnick of rights at all, especially when the interests of certain groups are at stake. Because this may undermine their ability to effectively hold their representatives to account, it threatens the sense in which it is safe to assume that legislators will not disregard constitutional values. Unfortunately, critics of judicial review provide no evidence that their assumptions about the knowledge and commitment to individual rights of ordinary citizens are not unrealistic (1402). Waldron allows that judicial review might be appropriate in noncore cases as an anomalous provision to deal with special pathologies (1359). However, we have no reason to think that the assumptions that mark out Waldron s core case are anything like normal or standard conditions. We are, therefore, without reason to believe that Waldron s argument which depends on an idealized picture of a thoroughly attentive and rights-respecting citizenry is a coreargument inthesensethatitappliestoawide range of typical cases. Core Cases as Ideal Theory There is, however, a second way in which the appeal to core and non-core cases is sometimes deployed. Here, the approach is meant to be similar to that of John Rawls in that it employs the device of the core case to define something like a well-ordered society with a publicly accepted theory of justice (1366n53). In Rawls s work, a well-ordered society is an ideal of ajustsociety inwhich(1)everyoneacceptsandknows that the others accept the same principles of justice, and (2) the basic social institutions generally satisfy and are generally known to satisfy these principles (Rawls 1999, 4). Rawls uses this construct because he thinks that the only way to think rigorously about the injustices of existing society is to have a picture of a well-ordered society against which to measure them. We cannot know, for example, if the distribution of wealth in our society is unjust until we have an account of what constitutes a just distribution. Similarly, Waldron sometimes suggests that he is interested in arguing that judicial review is not an appropriate institution for a well-ordered society. This approach, however, is best seen as a tool for developing the appropriate principles around which to organize a society. It is useful in the development of principles of justice because we do not want such arguments to be polluted by the prejudices or unjust beliefs of the population. Once we are in possession of principles of justice and interested in turning to questions about the kind of institutional structures that are most likely to allow us to approximate these principles, idealized assumptions are relaxed such that agents know the relevant general facts about their society and are to select the institutional arrangements which are most likely to lead to a just and effective legal order (Rawls 1999, 172). Rawls explains that: To solve this problem intelligently requires a knowledge of the beliefs and interests that men in the system are liable to have and of the political tactics that they will find it rational to use given their circumstances. (1999, 173 4) So, once we move to questions of institutional design, it is crucial to consider general facts about the society. This includes knowledge about the political culture and the incentives facing particular actors. Alternatively, this second interpretation of the core/non-core distinction asks us to pursue institutional questions given behavioral assumptions parallel to those made by Rawls in ideal theory. This is part of Waldron s attempt to insist that we assess the core objection, and to see whether it is valid on its own terms (1360; emphasis added). The difficulty with this suggestion is that an argument s validity is insufficient when considering institutional questions. To see this, consider the following conditional argument against judicial review: Premise: In core cases, citizens are purely altruistic and perfectly informed. They will go to all possible lengths to avoid violating the rights of others. Conclusion: In core cases, there is no need for judicial review because citizens will not violate the rights of their compatriots. Although this is a valid argument against judicial review, it is not sound because there is no reason to accept the premise on which it hinges. Because of this, the argument is devoid of institutional implications. Instead, it only applies Madison s reasoning ( if men were angels, no government would be necessary [Hamilton, Madison, and Jay  2003, 252) to a particular case. Unfortunately, the methodological interpretation of the core/non-core distinction renders the argument against judicial review similar to the one above. Remember Waldron s assumption that citizens commitment to rights: is not just lip service... they care about them, they keep their own and others views on rights under constant consideration and lively debate, and they are alert to issues of rights in regard to all the social decisions that are canvassed or discussed in their midst. (1365) Because of this, he assumes: that the institutions, procedures, and practices of legislation are kept under constant review from this
11 judicial review 11 perspective, so that if there are perceived inequities of representation that derogate seriously from the ideal of political equality, it is understood among all the members of the society that this is an appropriate criticism to make and that, if need be, the legislature and the electoral system should be changed to remedy it. (1362) It may well be true that in such a society, judicial review would be superfluous. However, just as Madison s argument does not show that government is unnecessary, the claim that judicial review would be unnecessary in a society in which people were strongly committed to rights, kept them under constant consideration, and policed them independently, does not show that the institution is illegitimate in our very different circumstances. Instead, Waldron s appeal to core cases rules out the concerns of advocates of the insulation argument by assumptive fiat. Ideally, political institutions are tools that groups use to help amongst other things realize justice, solve collective action problems, and pursue their joint interests. Their appropriateness crucially depends on the particular circumstances of the society. Unfortunately, the assumptions that guide Waldron s inquiry do not accurately reflect the conditions that we face and are therefore inappropriate for questions of institutional design. Although there is good reason to abstract from certain imperfections in society when asking about the principles that we ought to use to regulate that society, the same cannot be said of questions about appropriate institutions. Instead, political institutions ultimately recommend themselves only if they help approximate desired results, given the particular conditions of society. This suggests that Waldron s hope for a core argument against judicial review that is independent of both its historical manifestations and questions about its particular effects (1351) is unavailable. Instead, an adequate assessment of the legitimacy of judicial review depends on the best available assessment of whether or not judicial review is likely given realistic conditions to better protect individual rights than available alternatives. In sum, critics of judicial review who appeal to the core/non-core distinction must either show that the assumptions on which this argument hinges actually hold in the societies in question or forego claims about the institutional implications of their argument. Unfortunately for critics of judicial review, existing evidence suggests that the former tack is unlikely to succeed, while the latter tack robs the argument of its interest. Thus, evaluating judicial review through the scope of the core/non-core distinction obscures the issue and fails to provide reason to abandon the outcome-based perspective elaborated by advocates of the insulation argument. Conclusion Critics of judicial review often try to circumvent the question of comparative outcomes. They do so by arguing that such an evaluation is irrelevant for procedural reasons, impossible because of disagreement about desirable outcomes, or methodologically misguided. The primary purpose of this article has been to show that there are no good reasons to abandon the outcome-oriented perspective elaborated by the insulation argument. Instead, evaluations of judicial review should combine empirical and normative analysis in order to ask whether or not there is reason to prefer a system of governance that allows certain kinds of decisions to be made in a legal environment that is, to at least some degree, insulated from electoral pressure. Acknowledgments For helpful discussion, we thank Thomas Brambor, Yasmin Dawood, Pat Egan, John Ferejohn, David Johnston, Michael Kates, George Klosko, Dimitri Landa, Jeffrey Lenowitz, Bernard Manin, Pasquale Pasquino, Alex Scacco, Melissa Schwartzberg, and Micah Schwartzman. References Ackerman, Bruce A Beyond Carolene Products. Harvard Law Review 98 (4): Bellamy, Richard The Democratic Constitution European Political Science 7 (1): Bickel, Alexander The Least Dangerous Branch. Indianapolis, IN: Bobbs-Merrill Co. Brettschneider, Corey Democratic Rights. Princeton, NJ: Princeton University Press. Casper, Jonathan D The Supreme Court and National Policy Making. American Political Science Review 70 (1): Chong, Dennis How People Think, Reason, and Feel about Rights and Liberties American Journal of Political Science 37 (3): Dahl, Robert Decision Making in a Democracy. Journal of Public Law 6 (2): Delli Carpini, Michael X., and Scott Keeter What Americans Know about Politics and Why it Matters. New Haven, CT: Yale University Press.
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