7 - Dialogue, Finality and Legality

Summary

This chapter has two tasks. The first is to clarify different senses of the term ‘dialogue’. It explores whether it implies an egalitarian relationship between institutions, whether it justifies judicial review, who has the last word under the metaphor, and how, importantly, it relates to the ‘passive virtues’ tradition of judicial restraint associated with Alexander Bickel, John Hart Ely and Cass Sunstein. The second task is to point out certain problems with the dialogue metaphor, and in particular those relating to recent reformulations of the idea. The author argues that the equivocation over who has the last word in rights disputes puts rights at substantial risk; that the dialogue metaphor pays insufficient attention to the need for finality and authoritative resolutions of law; and that the separation of powers is put in doubt where legislatures are invited to reject the constitutional interpretations of the judicial branch. Agreeing with these criticisms does not commit one to a robust view of judicial supremacy, one that makes no room for judicial restraint. To the contrary, the passive virtues tradition that dialogue theory seeks to replace or compete with has fewer of these problems.