For more than two decades, University Professor Jeremy Waldron and Samuel Issacharoff, Bonnie and Richard Reiss Professor of Constitutional Law, have disagreed about the legitimacy of judicial review, including whether judges should have the power to determine the constitutionality of laws passed by a democratically elected legislature. On October 30, the two brought their long-running debate to Respectfully Dissent, a new series at the Law School that showcases civil dialogue between faculty members on contentious issues.
In an animated but friendly conversation, Waldron, a preeminent legal and political philosopher, and Issacharoff, who has helped pioneer the study of the law of the political process, explored their differences on the subject of judicial review. They also noted the places where they find common ground, and acknowledged the benefits of testing their arguments against an opposing viewpoint.
Watch the conversation on video:
Waldron argued that judicial review is anti-democratic because it elevates the decisions of a simple majority of justices above the decisions taken by the more representative legislature. “My worry is that judicial review suffers from a sort of legitimacy defect,” he said, “because all we can say is that a majority of justices voted against you on this matter. A majority of wise justices, a majority of serious-minded justices, no doubt, but these were unelected justices, justices who had no democratic credentials to their name.”
In responding, Issacharoff took time to explain the contrasting perspectives that he and Waldron bring to the discussion. “[Waldron] tends to look for idealized principles and then to distill them—and this is unique among political philosophers—distill them down into what kinds of institutional arrangements should be had. And you must appreciate what a breath of fresh air this is in political philosophy,” Issacharoff said. “It’s why he’s been so significant.”
“I tend to be bottom-up,” Issacharoff continued. “I look at the lived experience and then see what kind of theories I can map onto the lived experiences to give the best account I can of institutional successes [and] institutional failures.”
He then raised several objections to Waldron’s position. Sometimes, Issacharoff noted, legislatures act contrary to the interests of democracy. Citing examples from Taiwan, India, and South Africa, he argued that courts sometimes need to step in to overrule legislation that locks out political opponents from democratic processes.
Furthermore, Issacharoff added, around the world legislatures are losing power to the executive branch of government. “The legislative branch is not the center of policy determination, it is not the center of political debates, it is not the center of the type of legislative engagement that Jeremy sets out as the ideal,” he said.
“He keeps me honest,” Waldron said of Issacharoff. Focusing on the issue of rights, he said that an ideal legislative procedure would find a way to accommodate the concerns of a minority. But he acknowledged that in some cases courts may do a better job of protecting minority rights or interests than a legislature can.
Waldron also argued that if courts try to rein in anti-democratic moves by legislatures, they “might make things worse by relieving the legislature of the burden of reforming itself.” Or, he added, courts “might make things worse in the sense that the judges take the opportunity simply to pursue their own convictions and their own politics.”
“This is the kind of exchange that has been so useful for me over the years,” Issacharoff said. He noted that the institution of judicial review has been the norm in new democracies formed since 1989—making Waldron’s position a minority view. But Waldron, he said, has challenged him by asking, in effect, “‘How’s that worked out for you? Can you draw any line that would connect that vision of democratic politics under constitutional court supervision to the collapse of the legislature in country after country and to the incredible erosion of democratic stability that we’ve seen in the past 20 years?’”
Waldron has also pointed the conversation back to the fundamental issue of rights, Issacharoff noted. “[This is] the right set of critiques,” he said, “and this is the way this [ongoing exchange] has had a big influence on me.”
Posted December 9, 2024