Beyond Samuel Moyn's Countermajoritarian Difficulty as a Model of Global Judicial Review

By Gathii, James Thuo | Vanderbilt Journal of Transnational Law, November 2019 | Go to article overview

Beyond Samuel Moyn's Countermajoritarian Difficulty as a Model of Global Judicial Review


Gathii, James Thuo, Vanderbilt Journal of Transnational Law


TABLE OF CONTENTS    I. INTRODUCTION                                        1238  II. MOYN'S ARGUMENTS                                    1239 III. THE UTILITY OF THE COUNTERMAJORITARIAN      DIFFICULTY                                          1241      A. The Historical Contingency of the         Countermajoritarian Difficulty                   1245      B. Judicial Restraint /Modesty as Judicial         Abdication                                       1251  IV. DOES THE COUNTERMAJORITARIAN DIFFICULTY HELP      Us UNDERSTAND JUDICIAL REVIEW OUTSIDE THE      UNITED STATES?                                      1260      A. The Constitutionalization of Judicial         Review in South Africa                           1266      B. Understanding the Role of International Courts         in Newly Democratizing Countries                 1271   V. CONCLUSION                                          1277 

I. INTRODUCTION

This Article responds to Samuel Moyn's sweeping critique of judicial review and his endorsement of judicial modesty as an alternative approach to judicial review. Moyn argues that judicial overreach has become an unwelcome global phenomenon that should be reexamined and curbed. (1) Moyn argues legislatures are the ideal forums for the types of decisions he objects to courts making. (2) To explain this view of judicial review, he invokes the countermajoritarian difficulty to account for the limits of judicial review. (3) In doing so, he endorses Justice Felix Frankfurter's notion of judicial modesty as an ideal alternative to what he considers judicial overreach. (4)

This Article's response has two major claims. First, that by adopting the historically contingent countermajoritarian difficulty as his point of reference, Moyn inaccurately poses an insoluble dilemma between judicial review and democracy that he then resolves in favor of democracy and against judicial review. Second, setting aside the assumption that courts can be agents of structural reform, Moyn ignores the utility of courts to litigants. His critique of judicial overreach ignores how litigants use litigation to amplify their nonjudicial strategies in achieving their goals. The rest of the Article is organized as follows. Part II briefly examines Moyn's major claims, especially insofar as they are relevant to this Article's response. Part III addresses this Article's first major response to Moyn--that his use of the countermajoritarian difficulty as his point of reference for critiquing judicial review is a historically contingent US framework that may not account for how to think about judicial review outside the United States. In Part IV, this Article shows that Moyn does not account for the utility that litigants see in courts and the many other pressure points that these litigants simultaneously engage. It uses examples from South Africa and the East African Court of Justice to illustrate this point.

II. MOYN'S ARGUMENTS

In his Article, "On Human Rights and Majority Politics: Felix Frankfurter's Democratic Theory," Samuel Moyn places the countermajoritarian difficulty at the center of his analysis. (5) He argues that notwithstanding the warnings of Felix Frankfurter, the "risks of judicial enforcement of rights" have conquered "the whole world." (6) According to Moyn, the whole world is now in an age of "juristocracy." (7) He defines that to mean the tendency "for judges to take responsibility for expanding and redefining statutory human rights, outrunning popular legitimation and stoking backlash." (8) He argues that while this American export of judicial activism for a time served liberal causes, it "has long since reversed into reactionary judicial activism, with more to come." (9) For Moyn, the backlash against rights may very well deprive the people "the opportunity to learn from their mistakes under liberal democracy before it was too late." (10) Moyn argues that

Democrats need not turn their backs on rights, but they do need to  overcome the mistake of relying on the princes of law's empire (as  Dworkin famously called judges) and human rights activists (who  sometimes assign themselves an analogous role) as the preeminent  guardians of rights. … 

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