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AGAINST THE CORE OF THE CASE

Structuring the Evaluation of Judicial Review

Published online by Cambridge University Press:  26 July 2011

Juan F. Gonzalez Bertomeu
Juan F. Gonzalez Bertomeu*
Affiliation:
New York University School of [email protected]
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Abstract

The debate over judicial review of legislation is profuse. But differences are often due to the lack of a common methodology. This article discusses the proper way to evaluate judicial review and confronts central challenges raised against it. It develops the two main models that can be used for analyzing the intersection between democracy and constitutional decision-making and shows that judicial oversight may not be rejected, regardless of how we interpret that connection. The article discusses in detail the model developed by Jeremy Waldron. A nice attempt to answer methodological questions, Waldron's model wrongly tips the balance against judicial review. Its excessive level of abstraction and idealization renders it inoperable. Few systems meet its standards, and those that do pay a high price: they contradict the concept of democratic legitimacy that underlies the model. Paradoxically, a system with judicial review may end up being more legitimate than one without it.

Type
Research Article
Information
Legal Theory , Volume 17 , Issue 2 , June 2011 , pp. 81 - 118
Copyright
Copyright © Cambridge University Press 2011

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References

1. See Waldron, Jeremy, The Core of the Case against Judicial Review, 115 Yale L.J. 1346 (2006)CrossRefGoogle Scholar. “Weak” judicial review encompasses the myriad cases in which a court can initiate a dialogue with the other branches without its having a final say.

2. See, e.g., Adrian Vermeule, Judging under Uncertainty (2006), at 40–52, 230–288.

3. See Kornhauser, Lewis, Virtue and Self-Interest in the Design of Constitutional Institutions, 3 Theoretical Inquiries L. 6–7 (2002)Google Scholar.

4. See Sunstein, Cass, Against Positive Rights: Why Social and Economic Rights Don't Belong in the New Constitutions of Post-Communist Europe, 2 E. Eur. Const. Rev. 35–38 (1993)Google Scholar.

5. See Waldron, supra note 1.

6. This concern is always present in the prolific scholarship on or related to judicial review. See, inter alia, Alexander Bickel, The Least Dangerous Branch (1986); John Hart Ely, Democracy and Distrust (1980); Bruce Ackerman, We the People (1993); Ronald Dworkin, Freedom's Law (1997); Cass Sunstein, One Case at a Time (2001); Larry Kramer, The People Themselves (2004); Barry Friedman, The Will of the People (2009), for only a few examples. Of course, the list should also include the works by Waldron and Tushnet that this article discusses in more detail.

7. See Mark Tushnet, Taking the Constitution Away from the Courts (2000); Mark Tushnet, Weak Courts, Strong Rights (2008); and Mark Tushnet, Against Judicial Review, Harvard Public Law Working Paper Series, Paper No. 09–20 (March 26, 2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1368857.

8. See, e.g., Kennedy, Duncan, The Critique of Rights in Critical Legal Studies, in Left Legalism/Left Critique 178–227 (Brown, W. & Halley, J. eds., 2002)CrossRefGoogle Scholar, at 199–208.

9. See, e.g., Sanford Levinson, Our Undemocratic Constitution (2006), at 159–166.

10. See Kornhauser, supra note 3, at 2, 6–7.

11. See John Rawls, Theory of Justice (1971), at 8. See also Amartya Sen, The Idea of Justice (2009); and Samuel Freeman, A New Theory of Justice, N.Y. Rev. Books, October 14, 2010, for a recent critique and defense, respectively, of Rawls's use of ideal theory.

12. Waldron, supra note 1, at 1361.

13. Id. at 1402.

14. Id. at 1363.

15. Id. at 1365.

16. Id. at 1367–1368.

17. See infra Section IV.

18. Waldron, supra note 1, at 1401–1406.

19. See infra Section III.A.

20. Waldron, supra note 1, at 1365.

21. Id. at 1381; see also id. at 1385 n.110 (where he replies to a comment similar to that formulated here).

22. See supra text following note 9.

23. See supra note 7. See infra discussion following note 111.

24. See Freeman, supra note 11.

25. I am grateful to one of the anonymous referees for suggesting a clearer way to portray this idea.

26. I am grateful to Jeremy Waldron for pointing out that this latter case will be unusual. One may too quickly leap to the conclusion that this is due to judicial review's success. It might not be. Judicial review may be partly seen as an elite enterprise. Among other groups, lawyers benefit from the practice. One may thus think that as (some of) those who would bear the costs of its removal are heavily organized—lawyers do not face high organization costs—their bargaining power to halt any changes would be strong. Another possible way to see this is that the practice is sticky–once implemented, it tends to get “naturalized” as part of the “rule of law” discourse. Consequently, efforts to remove it may seem just short of revolutionary and as attempts to challenge the “rule of law” itself.

27. When drafting a constitution, we may already have some level of information that allows us to make predictions. In our actual scenario, we may or may not have this information, and when available, the information would suggest the country leans either toward the core* or the noncore direction. What we cannot do is simply to assume that this information—if it exists at t1—would always suggest that the country will become a core case*.

28. Waldron explicitly recognizes the possibility that a “core” political system (a core case) is equipped with judicial review.

29. Waldron, supra note 1, at 1389. See also infra Section IV.

30. See infra note 35 and accompanying text.

31. Even when we could still say that judicial review played a role anyway; judicial silence may be as important as judicial activism.

32. Ronald Dworkin's account comes easily to mind, but it may also fall into the version of the mistake-disagreement model which states that while only one answer is correct, people may disagree as to its identification. See Ronald Dworkin, Taking Rights Seriously 279–291 (1977).See infra Section III.B.

33. Waldron, supra note 1, at 1372 n.67.

34. See Fallon, Richard H. Jr., The Core of an Uneasy Case for Judicial Review, 121 Harv. L. Rev. 1693, 1704–1710, 1728–1734 (2008)Google Scholar.

35. See James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law (1893), at 29–30:

No doubt our doctrine of constitutional law has had a tendency to drive out questions of justice and right, and to fill the mind of legislators with thoughts of mere legality. . . . And moreover, even in the matter of legality, they have felt little responsibility; if we are wrong, they say, the courts will correct it. . . . Meantime they and the people whom they represent . . . are belittled, as well as demoralized.

36. It is complex to draw conclusions from cross-country comparisons if relevant variables are not controlled for. But even to attempt such a comparison may prove burdensome, for many countries have to some extent implemented judicial review. Part of what explains this trend is that political systems have not always proved so healthy. So the idea that legislatures with no judicial review may strongly respect the constitution is difficult to assess in part because it has been contradicted by the practice of actual institutions. True, this is not necessarily an argument for judicial review—not every country either has it or has implemented it for those reasons, and we may think we should strive to improve political institutions from within before resorting to external umpires. Further, some people regard judicial review as both an elitist enterprise and the result of an unreflective global trend. See supra note 26.

37. Many people have made the point about the lack of incentives induced by judicial review, including Mark Tushnet. See Mark Tushnet, Taking the Constitution Away from the Courts, supra note 7, at 54–71; see also Mark Tushnet, Weak Courts, supra note 7, at 79–110. See infra text following note 38.

38. Tushnet, Weak Courts, supra note 7, at 111–159.

39. Id. at 81.

40. Id. at 87, arguing that:

Bruce Peabody's recent survey of the views of members of the U.S. Congress indicates that its members do pay attention to the Constitution more often than academic skeptics think. And, interestingly, a fair number of Peabody's respondents take the view that Congress has the duty to arrive at a constitutional interpretation independent of the Supreme Court's interpretation.

41. Id. at 87, fn. 20. The quote refers to Peabody, Bruce, Congressional Constitutional Interpretation and the Courts, Law & Soc. Inquiry 127, 146 (2004)Google Scholar.

42. See Peabody, id. at 147 (describing the survey's “Question 2” in the following way: “Should Congress defer to Court?”)

43. See id. at 164 (arguing that “this study points to the need to map legislators' attitudes about congressional interpretation with their subsequent behavior. We need additional research to examine the conditions under which members of Congress act upon their views about constitutional analysis”).

44. See J.M. Pickerill, Constitutional Deliberation in Congress (2004), for a study showing U.S. legislators paying attention to the Constitution partly as a result of judicial review.

45. See Thayer, supra note 35. I thank Fernando Basch for suggesting this example to me.

46. Cf. Devins, Neal, Reanimator: Mark Tushnet and the Second Coming of the Imperial Presidency, 34 U. Rich. L. Rev. 359 (2000)Google Scholar (arguing that “The ‘judicial overhang’ of which Tushnet complains actually operates as a legitimating constraint on elected government interpretations of the Constitution, especially Executive Branch interpretations”).

47. Waldron's work includes a thorough analysis of this version of the concept. See Jeremy Waldron, Law and Disagreement (1999), at 88–118, 298–312. Some would deny that this is all what the concept entails, arguing, for instance, that a legitimate institution needs to respect some substantive rights other than those directly related to political participation. If we were to embrace this latter understanding, we would, of course, have fewer problems with judicial review. See Dworkin, supra note 6, at 1–38.

48. In a way, the mistake-only model corresponds most naturally to an outcome-based conception of legitimacy rather than the process-based notion introduced here. Alternatively, one can argue that “legitimacy” under this model refers to the epistemic potential of the political process—a view that will be mentioned below (see infra text following note 63). Judicial review could be justified in cases of “mistake” on the grounds that this potential was not realized.

49. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, art. 33.1 (U.K.). See also Bateup, Christine, The Dialogic Promise: Assessing the Normative Potential of Theories of Constitutional Dialogue, 71 Brook. L. Rev. 1109–1180, at 1119–1120 (2006)Google Scholar; and Allan, James, The Travails of Justice Waldron, in Expounding the Constitution. Essays in Constitutional Theory 161–183, at 175–180 (Huscroft, Grant ed., 2008)CrossRefGoogle Scholar.

50. See Waldron, Jeremy, Some Models of Dialogue between Judges and Legislators, in Constitutionalism in the Charter Era (Huscroft, Grant & Brodie, Ian Ross eds., 2004), at 30–37Google Scholar. See also Allan, supra note 49, at 177–179

51. The legislature may say: “We are aware this is a grave violation, but upon very careful reflection we need to insist on this. The situation is truly exceptional.” This possibility should not be seen as necessarily weakening an argument about constitutional supremacy and judicial review. Breaking a rule in a particular instance is not the same as ignoring it, and a model of judicial review may well make room for exceptions.

52. See Waldron, supra note 50, id.; see also Allan, supra note 50, id..

53. See Fallon, supra note 34.

54. Id.

55. Id. at 1694, 1704–1709.

56. Id. at 1735.

57. Id. at 1694, 1704–1709.

58. Id. at 1711.

59. Many constitutions in the world today, from India to Eastern Europe, from Latin America to South Africa, include socioeconomic rights. Fallon downplays the role of positive rights in constitutions, a strategy this article does not advance. See id. at 1712:

As presently advised, I believe that those designing and assessing constitutions in most western liberal democracies could reasonably assume that legislative action is more likely than inaction to violate fundamental rights. . . . This judgment obviously underlies bills of rights that create negative but not positive rights.

60. This mandate, for instance, is clear in the case of the International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. No. 16 at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976. See id., art. 2.1 (emphasis added), stating that:

Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

61. Fallon, supra note 34, at 1694, 1704–1709.

62. For ease of exposition, this category encompasses two types of situations. The first is that in which the statute violates the rights of people who are not and should not be affected by the regulation. The second is that in which the right is enforced in an internally deficient way, thus affecting people who are or should be under the scope of the regulation. For instance, a statute attempting to enforce the right to public health care could disproportionately discriminate against a group of disadvantaged people.

63. Arguably, this is Habermas's position. See, e.g., Jürgen Habermas, Between Facts and Norms (1996), at 287–328.

64. Kramer, supra note 6, at 241–246.

65. See Christopher F. Zurn, Deliberative Democracy and the Institutions of Judicial Review (2007), for a recent exploration of the relationship between deliberative democracy and judicial review.

66. Condorcet's Jury Theorem (first offered by the Marquis de Condorcet in 1785) states that if the average probability of making a right decision of each member of a voting group is greater than 0.5, the chance of the group making a correct decision will marginally increase with the addition of more members to the voting pool. This probability tends to 1 as the group tends to infinity. See List, Christian & Goodin, Robert E., Epistemic Democracy: Generalizing the Condorcet Jury Theorem, 9 J. Pol. Phil. 277 (2001)CrossRefGoogle Scholar.

67. The mechanics behind the Condorcet theorem might not be strong enough to allow for the selection of the best answer among two good ones, as its virtue is exhausted rapidly.

68. This may sound naïve. Opponents of judicial review would point out that in practice, judges are not so prone to be thus restricted in any one direction. But as our description is still quite abstract, we should not think that this feature, present in some actual cases, could not be changed.

69. See, e.g., Dahl, Robert, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. Pub. L. 279–295 (1957)Google Scholar. See also Barry Friedman, The Will of the People (2009); and Friedman, Barry, Mediated Popular Constitutionalism, 101 Mich. L. Rev. 2596 (2003)CrossRefGoogle Scholar.

70. See, e.g., Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model (1993); and Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (2002), for two seminal contributions in this field. Other scholars argue that while judges care about policy preferences, they are often strategic. They advance their preferences insofar as they can, and sacrifice them if by doing so they promote some general goal—securing their tenure, promoting their career, generating good reputation among their peers, and so on. See, e.g., Lee Epstein, The Choices Justices Make (1997).

71. See Leiter, Brian, Legal Realism and Legal Positivism Reconsidered, Ethics, Vol. 111, No. 2, (January 2001), pp. 278–301CrossRefGoogle Scholar.

72. Although Leiter does not describe this position as a version of legal realism, it might follow from his description of a minority of realists as thinking that the “idiosyncrasies of the judge's personality determined the decision.” See Leiter, supra note 71, at 281.

73. See Cohen, Felix, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809 (1935)CrossRefGoogle Scholar. See also Leiter, supra note 70, at 290–291.

74. See Waldron, supra note 1, at 1364.

75. Id. at 1392.

76. Bundesverfassungsgerichts-Gesetz [BVerfGG] [Federal Constitutional Court Act] art. 15(4) (Ger.).

77. A rule requiring five votes out of nine, as in the United States, approaches a stricter majority decision.

78. See Wilson, Bruce M., Changing Dynamics: The Political Impact of Costa Rica's Constitutional Court, in The Judicialization of Politics in Latin America 48–56 (Sieder, Rachel, Schjolden, Line & Angell, Alan eds., 2005)Google Scholar.

79. Constitución Política de Costa Rica [Constitution] art. 10 (Costa Rica).

80. See Wilson, supra note 78.

81. See Section IV below for an exploration of the concept of institutional “health.”

82. See supra text following note 12.

83. By way of a reminder, Waldron is particularly against what he calls “strong” judicial review, which includes a court's possibility of either declining to apply or invalidating a statute. See Waldron, supra note 1, at 1354.

84. See supra text following note 17.

85. Jeremy Waldron, Compared to What? Judicial Activism and New Zealand's Parliament, N.Z. L.J. 441–445 (2005). I am most grateful to Jeremy Waldron for having called my attention to this article.

86. Id. at 442.

87. Id. at 445.

88. Id.

89. Id. at 443.

90. Id. at 445.

91. The United States seems to be the clearest case in which Waldron thinks judicial review is unjustified. See id. at 442 (arguing that “I am known as a fanatical opponent of strong judicial review in the United States”). See also Allan, supra note 49, at 165.

92. As previously argued, this section tries to avoid using the language of rights, for we are holding constant Waldron's third assumption—on the level of rights commitment.

93. See Linz, Juan J., Presidential or Parliamentary Democracy: Does It Make a Difference?, in 2The Failure of Presidential Democracy: The Case of Latin America (Linz, Juan J. & Valenzuela, Arturo eds., 1994)Google Scholar, at 7, for a classic account emphasizing this feature, as well as some others, as part of a critique of presidential regimes.

94. In speaking of the “executive” regarding parliamentary systems, I am referring not to the head of state but to the chief executive, whether this is the prime minister or the chancellor.

95. See Clinton v. City of New York, 524 U.S. 417 (1998).

96. See Levinson, supra note 8, at 29–38, 49–62.

97. A study that analyzes the United Kingdom House of Commons (along with other lower chambers) between the mid-1980s and the early 2000s finds the success rate of opposition bills to be marginal (the proportion of passed bills when the initiator is the government party and not the primer minister is also small; the authors do not offer exact proportions for both these rates but show them in a figure). See Thomas Bräuninger & Marc Debus, Legislative agenda-setting in parliamentary democracies, European Journal of Political Research 48: 804–839 (2009), at 819. Conversely, when it is the government that introduces law proposals in the House, 95 per cent of these proposals finally pass. Id. at 820

98. See Levinson, Daryl J. & Pildes, Richard H., Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311 (2006), at 2316–2329Google Scholar.

99. See, generally, Arendt Lijphart, Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries (1999). See also Levinson, supra note 8, at 32.

100. Fewer veto players would typically entail greater centralization, especially if these players are ideologically aligned. See George Tsebelis, Veto Players: How Political Institutions Work (2002), at 67–115; and Tsebelis, George, Decision Making in Political Systems: Veto Players in Presidentialism, Parliamentarism, Multicameralism and Multipartyism, 25 Brit. J. Pol. Sci. 289–325 (1995)CrossRefGoogle Scholar. See also Cheibub, José Antonio & Limongi, Fernand, Democratic Institutions and Regime Survival: Parliamentary and Presidential Democracies Reconsidered, 5 Ann. Rev. Pol. Sci. 168–176 (2002)Google Scholar.

101. But see Allan, supra note 48, at 164–165 (arguing that “[o]ne's initial reaction would be to say that the United States and Canada, and, for that matter, the United Kingdom, Australia and New Zealand, are obviously ‘inside the core’ countries,” and adding that “[t]he fact that all of us can point to what we see as imperfections in the electoral and legislative arrangements of Justice Waldron's jurisdiction is far from enough to qualify it as a jurisdiction that is ‘outside the core’”).

102. See Morton White, Philosophy, The Federalist, and the Constitution (1989), at 98.

103. See The Federalist No. 51 (James Madison). See also Gordon S. Wood, The Creation of the American Republic (1998), at 162–255.

104. See Levinson, supra note 8, at 25–62.

105. This is so even in a federal parliamentary country such as Germany, where the Bundesrat has fewer legislative powers than the Bundestag. See Grundgesetz für die Bundesrepublik Deutschland [GG] [Basic Law], May 23, 1949, BGBl. 1, art. 77–78 (Ger.).

106. See, e.g., Jeremy Waldron, The Dignity of Legislation (1999), at 156–162.

107. Waldron falls short of acknowledging this. He states that “[t]he assumption of bicameralism might seem problematic. There are in the world a number of well-functioning unicameral legislatures. . . . But unicameral arrangements can easily exacerbate other legislative pathologies.” Waldron, supra note 1, at 1361 n.47. In the following sentence, he goes on to mention the example of New Zealand as being outside the core case. But he does not mention the fact that U.S. bicameralism seems to be especially problematic due to its combination of symmetrical powers between the chambers and a much-less-than-majoritarian Senate.

108. See discussion supra following note 65.

109. See Levinson, supra note 8, at 25–77, for a discussion of the undemocratic nature of the U.S. political system.

110. Mark Tushnet, Against Judicial Review, Harvard Public Law Working Paper Series, Paper No. 09–20 (March 26, 2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1368857.

111. Id. at 2–3 (emphasis added).

112. Id. at 3.

113. Levinson, supra note 8, at 46.

114. See supra text following note 8.

115. See Kevin Sack, Judge Voids Key Element of Obama Health Care Law, N.Y. Times, December 13, 2010, at A1.

116. Id. See also, inter alia, Sherry, Suzanna, Our Unconstitutional Senate, in Constitutional Stupidities, Constitutional Tragedies (Levinson, Sanford & Eskridge, William eds., 1998), 95–98Google Scholar; and Eskridge, William N. Jr., The One Senator, One Vote Clauses, in Constitutional Stupidities, Constitutional Tragedies (Levinson, Sanford & Eskridge, William eds., 1998), 35–39Google Scholar; Levinson, supra note 8; George Packer, The Empty Chamber, New Yorker, (August 9, 2010), pp. 38–51; Paul Krugman, America Is Not Yet Lost, N.Y. Times, February 8, 2010, at A21.

117. See, e.g., Citizens United v Federal Election Commission, 558 U.S. 50 (2010) (where the Supreme Court held that corporate funding of political broadcasts in elections cannot be limited under the First Amendment).