On Judicial Review; Jeremy Waldron

By Waldron, Jeremy | Dissent, July 1, 2005 | Go to article overview

On Judicial Review; Jeremy Waldron


Waldron, Jeremy, Dissent


MY FIRST REACTION upon reading Mark Tushnet's radical and refreshing proposal was to applaud. It is high time partisans of democracy begin thinking in these terms: Tushnet's has been a lonely voice in American progressive circles urging skepticism about judicial review even when it delivers results that he agrees with. He wants us to think like democrats about judicial power and stop supporting it simply because it sometimes happens to work for progressive causes. Tushnet is right: the people deserve a forum for working through their disagreements about rights that is more inclusive than majority voting among nine unelected justices.

If my first reaction was applause, my second reaction was defensive. I started thinking of all the things that partisans of judicial review were likely to say in response to Tushnet. American law professors are deeply invested in judicial review--many of them served as clerks on the Supreme Court, and some of them dream (most of them in vain) of becoming justices themselves. They have developed standard responses when someone criticizes this practice, with which they identify so strongly.

One thing that's often said is that courts give reasons for their decisions, whereas legislatures do not, and this is a sign that courts, unlike legislatures, take seriously the issues of rights that they address. With courts, they say, we are never just faced with a bare decision about rights, coercively imposed; we have judicial reasoning, which helps bring constitutional rights into focus for us, and it would be a pity to give that up.

I'm not convinced. If you read what passes for "reasoning" in Supreme Court decisions, most of it is not about issues of rights at all. It's about legal history, or precedent, or jurisdiction, or theories of interpretation, or other legalisms. Judges know that their role is problematic. Thus they cling to the texts that authorize their interventions and laboriously debate their interpretation with special reference to theories like originalism and constructivism to show that they are legally entitled to do what they are doing. They may concoct analogies between what they are doing in one case and the contortions they went through when they dealt with similar or not-so-similar matters in the past. And all the time, the real issues at stake get pushed to the margins of their reasoning. In the Supreme Court's fifty-page opinion in Roe v. Wade (1973), for example, there are just two paragraphs dealing with the importance of the main issue at stake--the rights-status of the fetus. The rest is mostly taken up with showing the diversity of opinions on the matter. The result may be appealing, but the "reasoning" is threadbare.

By contrast, legislators do give reasons for their votes: the reasons are given in debate and they are published in the Congressional Record. Legislators may reason roughly by the standards of the Court's polished prose, and there are hundreds of them, and they have constituents (ordinary people) to answer to, so it's harder for law professors to keep track. For all their vices, though, legislators tend to go directly to the heart of the matter in their debates. I recently read through the House of Commons Second Reading debate on the liberalization of abortion law in the United Kingdom in 1966. (The British legalized abortion, prostitution, and homosexuality and abolished capital punishment, all by legislation, all without the assistance of the judiciary--or sometimes over its expressed opposition--in the 1960s.) The debate engaged pro-life Labour people and pro-choice Labour people, pro-life Conservatives and pro-choice Conservatives, talking through all questions that need to be addressed when abortion is being considered and debating them passionately but also thoroughly and honorably. The pro-choice faction eventually prevailed. …

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