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June 24, 2005

Judicial Review And Democracy II: The Legislative Source of Judicial Power

In my last post, I noted that the idea that courts are “counter-majoritarian” is not a useful basis for a critique of the courts. This is not to say, however, that there are no potential objections to judicial review from the standpoint of democratic theory. The first set of objections is strictly normative. On can concede—like John Hart Ely did—that Roe is not “counter-majoritarian” and still believe it was incorrectly decided, and the same is true for any other case. Jeremy Waldron’s objections to judicial review—which I actually find problematic in a number of respects—fall into this category.  Allow me bracket those type of objections for the time being; I don't have any grand theory of constitutional interpretation to offer anyway.  Instead, I’d like to focus on something else: the fact that courts and legislatures are not always locked in a zero-sum struggle for power, as most critiques of judicial review assume. I want to suggest, rather, that the courts and legislatures are in sometimes in cahoots, and that this opens up new ways of thinking about judicial review. I’ll start with some empirical examples…

Mark Graber’s classic article “The Non-majoritarian Difficulty” noted that on issues like slavery, antitrust and abortion ended up in the courts not because the courts “seized” power but because legislatures wanted no part of these issues, which cross-cut existing political coalitions and hence threatened to destabilize incumbent parties.  Congress both failed to use tools at their disposal to retaliate against judicial policy-making, and passed various measures that expanded the authority of the courts. Other scholars have confirmed Graber’s insights. Perhaps the best example is labor law, as George Lovell argues in Legislative Deferrals.  One of the great puzzles of political science is why labor became so ineffectual in the United States, although labor in the U.S., was once more radical and more powerful than in Europe. Some scholars argued that the key was the presence of judicial review: Congress would pass pro-labor legislation, which would be gutted by the courts.  Lovell, studying the Erdman and Clayton Acts, find however that Congress made each piece of legislation progressively more ambiguous, and gave more injunction power to the courts (which they knew full well were conservative and unlikely to resolve ambiguities in way that was favorable to the interests of labor) at each iteration. So the story of the courts “usurping” legislative power and screwing labor is highly misleading. The policy-making the courts engaged in was how a majority of Congress wanted it. Although we think of institutions as maximizing power, it is not uncommon for legislatures to delegate and defer power to the courts, just as they do to executive agencies. (Remember, legislators don’t always want to maximize policy goals; they also want to get re-elected, finesse conflicts among constituencies, etc.)

So what are the implications of this insight? On one level, this seems like a happier story than Bickel’s. Power delegated to the courts by legislatures who can take the power back if they don’t like the way it’s used can mitigate some basic democratic problems with judicial review. But a new problem emerges: the ability of democratically accountable decision-makers to avoid responsibility for difficult choices. The disgraceful kabuki dance Congress performed with respect to the Schiavo case—giving enough power to the courts to blame them, but not enough to actually change the status quo—is an example of what can happen. And, of course, this isn’t just about courts—there’s always this tradeoff in designing political institutions. Checks and balances have the advantage of constraining power, but the disadvantage of diffusing responsibility for policy choices. I don’t have any easy answers about how to make these tradeoffs. But I think it’s more useful to think about the strengths and weaknesses of judicial review in these terms. The potential problem with judicial review is not so much that there will be “judicial tyranny”—courts are inherently weak institutions that can’t withstand strong political resistance—but that it adds to the diminishing accountability of the modern welfare state.
 

Anyway, hope that some of you found this useful—I’ve had fun blogging here. Thanks to Ezra and my fine co-guest bloggers!
 

--Scott Lemieux

June 24, 2005 in The Supreme Court | Permalink

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Comments

More or less not much exciting happening today. I just don't have anything to say. More or less nothing seems worth bothering with.

Posted by: school | Sep 3, 2007 10:08:15 AM

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Posted by: peter.w | Sep 16, 2007 9:34:32 PM

We are better off today than we were eight years ago

Posted by: leen | Oct 4, 2007 9:07:36 PM

I just don't have anything to say these days. I've just been sitting around doing nothing. More or less nothing seems worth bothering with.

Posted by: media | Oct 16, 2007 1:29:47 PM

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