TABLE OF CONTENTS I. WALDRON'S ARGUMENT THAT OUTCOME-RELATED REASONS ARE INADEQUATE TO SUPPORT JUDICIAL REVIEW 1701 A. Waldron's Assumptions 1701 B. Which Assumptions Do What Work? 1701 II. PREFERRED RIGHTS AND OUTCOME-RELATED REASONS TO SUPPORT JUDICIAL REVIEW 1704 A. Distinguishing Errors of Underenforcement and Overenforcement of Individual Rights 1704 B. The Limits of the Outcome-Based Case for Judicial Review: Contestable Premises and the Burdens of Judgment 1709 III. PROCESS-BASED REASONS AND POLITICAL LEGITIMACY 1715 A. Waldron's Process-Based Argument--And Its Limits 1716 B. Political Legitimacy and Its Sources 1716 C. Comparative Democratic and Political Legitimacy 1717 1. Anchoring Assumptions 1717 2. Transitional Questions 1719 3. Judicial Review Without Entrenchment 1719 4. Entrenched Rights and Judicial Review 1722 (a) Entrenched Rights Without Judicial Review 1722 (b) Entrenched Rights Coupled with Entrenched Judicial Review 1724 IV. NOTES ON THE DESIGN OF A SYSTEM OF JUDICIAL REVIEW 1726 A. Judicially Reviewable Issues 1727 B. Scope of Review 1730 C. Choosing Strong or Weak Judicial Review 1731 D. Judicial Review in Societies that Are Not Well Ordered 1732 V. CONCLUSION 1733
Richard H. Fallon, Jr. *
For a long season, the desirability of judicial review of legislation was a complacent assumption of American constitutional, political, and moral thought. A vigorous debate percolated about how courts should interpret the Constitution, but not much serious discussion addressed whether judicial review should exist at all. Now matters have changed. Although debate continues concerning how courts should make constitutional decisions, distinguished critics have begun to argue for a fundamental rethinking of the role of courts in a democratic culture such as ours. (1) Some advocate the total abolition of judicial review. (2)
Having heard the critics, I now believe that the affirmative case for judicial review needs to be partially revised if judicial review is to be defended successfully on the moral high ground of liberal political theory. In a nutshell, the best case for judicial review in politically and morally healthy societies does not rest (as has often been asserted) on the idea that courts are more likely than legislatures to make correct decisions about how to define vague rights of the kind commonly included in bills of rights--on notions, for example, that courts are peculiarly well designed to function as "forum[s] of principle." (3) The best case, as Frank Cross also has argued, (4) rests instead on the subtly different ground that legislatures and courts should both be enlisted in protecting fundamental rights, and that both should have veto powers over legislation that might reasonably be thought to violate such rights.
A suggestive, albeit not perfect, analogy comes from the federal jury system in criminal cases, under which a defendant cannot be convicted without the unanimous agreement of the jury, (5) and each of the twelve jurors must vote to acquit unless persuaded that the defendant has been proven guilty "beyond a reasonable doubt." (6) If the concern were simply to get correct judgments about whether the accused had committed a crime, decisions by majority vote, pursuant to a preponderance of the evidence standard, would produce more accurate outcomes. (7) Instead, we skew the system in a pro-defendant direction based on the premise that errors resulting in mistaken convictions of the innocent are morally worse, and thus more important to avoid, than erroneous acquittals of the guilty. (8) In other words, we care less about minimizing the overall number of errors than about minimizing the errors in a particular direction--a situation that …