Why *Judicial* Review: A Preliminary Typology of Scholarly Arguments

—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, Int’l J. Const. L. Blog, Mar. 25, 2013, available at: http://www.iconnectblog.com/2013/03/why-judicial-review.