Respectfully Dissent—The Problem of Judicial Review

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Is judicial review a desirable feature of a modern constitution, or is it undemocratic? It doesn’t look very democratic when it allows major issues —like abortion, affirmative action, electoral finance, and gun control—on which the people and their legislative representatives are split, to be settled by a simple majority (5-4) of Supreme Court justices. It’s hard to see how that can be made legitimate. But maybe judicial review is part of what democracy requires: Ronald Dworkin argued this, and so did John Hart Ely. Or maybe it is desirable even if it is undemocratic: not all checks and balances have to involve elective institutions.
 
Perhaps it is possible to compromise, as some countries do, with a practice of weaker judicial review than ours. Decisions might require a supermajority on the court. Or—as was suggested recently in other countries—a legislative override might be possible under certain conditions. Or there might be other ways of fostering genuine dialogue between legislatures and courts.

Participants

• Sam Issacharoff, Bonnie and Richard Reiss Professor of Constitutional Law
• Jeremy Waldron, University Professor