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Judicial Review, Democracy, and Legitimacy:

Although Orin and I differ fundamentally over judicial review, we are united in our willingness to spend a sleepless night debating it. In his latest post, Orin claims that judges should be severely constrained in overruling legislatures because the latter more fully represent "the consent of the governed":

Where Ilya and I differ, I think, is in the nature and importance of governmental legitimacy. I think the legitimacy of government is premised on the consent of the governed. Notions of legitimacy are complex, of course, and I don't want to oversimplify matters too much. But legislatively enacted laws generally deserve respect because they reflect a process involving wide participation of those who will be governed by them through their elected officials. In contrast, judges impose constitutional limitations on their own, either acting individually as trial judges or on panels of a handful of judges. I think the closer connection to the consent of the governed of legislative acts relative to judicial ones provides an important reason judges should be reluctant to latch on to fallible and contested theories that would lead them to invalidate lots of legislation.

I have many objections to the above, but will limit this post to the three most important ones. First, a high proportion of legislatively enacted laws do not in fact represent "the consent of the governed" in any meaningful sense because the vast majority of voters are ignorant about them - often not even knowing of their existence. Indeed, if we really want laws that reflect the informed consent of the governed, we should strictly limit the scope of legislative power so that the amount of legislation would be small enough for rationally ignorant voters to have at least a minimal knowledge of. I develop these points in much greater detail in this article.

Second, to the extent that "the consent of the governed" implies the actual support of the majority of the actual public, it turns out that judicial review has at least as much or more consent-based legitimacy as legislative power does. As political scientist Terri Jennings Peretti shows in her book on the subject, polling data consistently shows that the vast majority of Americans strongly support judicial review and that the Supreme Court generally enjoys a much higher approval rating than Congress despite the fact that it routinely invalidates a great many more laws than Orin probably considers justified. I don't claim that strong judicial review is desirable merely because the vast majority of the public approves of it. Their support could be the product of ignorance or miscalculation. However, consistently strong public approval does suggest that judicial power has at least as much "legitimacy" in Orin's sense of the term as legislative power. Quite possibly more.

Finally, I think Orin oversimplifies when he says that "judges impose constitutional limitations on their own, either acting individually as trial judges or on panels of a handful of judges." In reality, judges' decisions are constrained by a political appointment process, by limits on their ability to implement decisions at odds with the views of other political actors, and by a highly institutionalized system of precedent and legal culture that make it difficult for any one judge or small group of judges to make radical changes "on their own."

Brian K (mail):
I have a question concerning this analysis: does the fact that judges are either elected themselves or appointed by those who are elected matter? in this sense don't judges also have "consent of the governed"?
1.24.2008 4:47am
Ilya Somin:
I have a question concerning this analysis: does the fact that judges are either elected themselves or appointed by those who are elected matter? in this sense don't judges also have "consent of the governed"?

This is part of what I had in mind in my third objection (when I referred to the appointment process). However, it's fair to note that federal judges, unlike federal legislators, can't be removed by electoral defeat if the public doesn't like their decisions.
1.24.2008 4:51am
Brian K (mail):
However, it's fair to note that federal judges, unlike federal legislators, can't be removed by electoral defeat if the public doesn't like their decisions.

very true. but wouldn't that be taken into account when making the appointment? i had always assumed that is why there is a large emphasis on how a potential judge would interpret the constitution rather than how they would rule on any individual case? (and i realize there are some exceptions to this)

also the senate has longer terms to allow them to to do things that are good for the country but may be political unpopular. the same can be said of judges. the lifelong terms of judges serve to constrain majoritarian power. with this in mind, i think whether or not judges should defer to legislatures is the wrong question in that implies that when in doubt one path should be taken. i think we should be asking when is it appropriate for judges to defer to legislatures and when should the aggresively strike down laws. for example, a previous commenter said judges should rule in such a way as to preserve rights. when a judge should vote to overrule and when a judge should defer can be determined during the appointment or election process.
1.24.2008 5:12am
Just a Nut (mail):
The elephant in the room is the judges poor training in many aspects that are important in delivering justice. I call is the 'English major effect' because it is seen at best when facts are made into 'legal facts' be presumption or delegation notwhitstanding the long experience in the business of fact determination--sciences--that determining facts requires considerable skill.

When procedural arguments constrained by precedent try to substitute for rigorous fact determination, specially in criminal cases, the result is fraught with errors. Examples are seen in the conviction of innocents, DNA evidence provides the best proof of hundreds executed or imprisoned for lack of diligence.

We are unlikely to escape it any time soon for there is a self satisfied school of thought firm in the belief that there is nothing better possible--just as was the case during the inquisition. But then, I am --Just a Nut.
1.24.2008 6:12am
Akronista (mail):
In judicial review debates, opponents of the practice like to maintain that voiding a statute undermines the "consent of the governed" or is "counter-majoritarian." These phrases are meant, I believe, to imply that judicial review is inherently undemocratic or immoral - they look like value statements. But when pressed, when asked, "What is the consent of the governed?" the phrase invariably turns into a defined term: every legislative enactment represents the consent of the governed.

If the "consent of the governed" reaches so far as to encompass every legislative act, then why doesn't it reach as far as the political selection of judges who may be overturning those acts. Why aren't judges' decisions imbued with the same magic quality of "consent of the governed"? Judicial review may be a good idea or a bad idea, but to characterize it as undemocratic is to use value-laden terms in place of more descriptive terms; it is to provoke rather than debate.
1.24.2008 6:43am
Sk (mail):
"I have many objections to the above, but will limit this post to the three most important ones. First, a high proportion of legislatively enacted laws do not in fact represent "the consent of the governed" in any meaningful sense because the vast majority of voters are ignorant about them - often not even knowing of their existence. Indeed, if we really want laws that reflect the informed consent of the governed, we should strictly limit the scope of legislative power so that the amount of legislation would be small enough for rationally ignorant voters to have at least a minimal knowledge of. I develop these points in much greater detail in this article."

This is a silly argument, because it applies equally to judges. If voters are ignorant of many laws that legislators pass, they are equally ignorant of the laws that judges overrule. This point does nothing for your argument.

"Second, to the extent that "the consent of the governed" implies the actual support of the majority of the actual public, it turns out that judicial review has at least as much or more consent-based legitimacy as legislative power does. As political scientist Terri Jennings Peretti shows in her book on the subject, polling data consistently shows that the vast majority of Americans strongly support judicial review and that the Supreme Court generally enjoys a much higher approval rating than Congress despite the fact that it routinely invalidates a great many more laws than Orin probably considers justified. I don't claim that strong judicial review is desirable merely because the vast majority of the public approves of it. Their support could be the product of ignorance or miscalculation. However, consistently strong public approval does suggest that judicial power has at least as much "legitimacy" in Orin's sense of the term as legislative power. Quite possibly more."

Another silly argument. You are in fact suggesting judicial reveiw is desirable merely because the vast majority of the public approves it.

Aside from that, you (and, granted, Orin) are confused about the definition of 'legitimacy.' Legitimacy seems to mean 'if enough people like it so that it can be supported politically.'

Public opinion polls equally reveal, repeatedly, that one of the most respected professions in American society are military officers. If military officers effected a military review of laws, and they remained popular, would their actions be 'legitimate'? In effect, is a coup acceptable in American democracy as long as it is popular? A takeover of government by popular industrialists?
Under your and Orin's definition of legitimacy, as long as the mechanism for decisions is popular it is legitimate, whether it is democratic or not (or, perhaps you are defining 'democratic' as 'popular in contemporary polls'). A failure of definition.

"Finally, I think Orin oversimplifies when he says that "judges impose constitutional limitations on their own, either acting individually as trial judges or on panels of a handful of judges." In reality, judges' decisions are constrained by a political appointment process, by limits on their ability to implement decisions at odds with the views of other political actors, and by a highly institutionalized system of precedent and legal culture that make it difficult for any one judge or small group of judges to make radical changes "on their own.""

But not constrained enough to limit their ability to overrule the laws of popularly elected legislators-which is the whole point.

Sk
1.24.2008 7:19am
Just Dropping By (mail):
This is a silly argument, because it applies equally to judges. If voters are ignorant of many laws that legislators pass, they are equally ignorant of the laws that judges overrule. This point does nothing for your argument.

It is your conclusion that doesn't follow. The universe of legislation passed is vastly greater than the universe of legislation judges "overrule" (by which I assume you mean "find unconstitutional). (I can't immediately find the number, but IIRC, only a fraction of 1% of federal statutes have ever been found unconstitutional.) Furthermore, the small subset of statutes judges find unconstitutional often tend to have been controversial when passed, so those statutes were already the subject of greater public attention.
1.24.2008 9:01am
Tim Dowling (mail):
Williams F. Buckley, Jr. once said he'd rather be ruled by the first hundred people in the phone book than by the faculty of Harvard. I think he'd be on Orin's side in this debate.
1.24.2008 9:10am
martinned (mail) (www):
L.S.,

To answer SK's question first: of course an undemocratic polity can be legitimate. There are many definitions of the concept, but they all tend to agree that the degree to which a polity is democratically controlled is only one factor of the equation. (Cf. for example the distinction between input legitimacy and output legitimacy, or Weber's distinction into legitimacy on the basis of ratio, of tradition or of charisma. [Wirtschaft &Gesellschaft, Part I, Chapter III, par. 2])

As for the main discussion, I think it is important to remember that judges can only veto legislation. So to the extent that it is true that we have fallible judges overruling a fallible Congress, what we end up with is more aptly described as a series of filters, where dumb ideas are filtered out because, in the first filter, they fail to win a majority in Congress, or, in the second filter, they fail to convince a jugde of their rational basis, etc. Each filter catches some of the mistakes (=false positives) of the previous filters.
1.24.2008 9:11am
Zombie Richard Feynman (mail) (www):
This is the best conversation I've seen on the Conspiracy in a while!

It seems to me both Orin and Ilya are assuming that the best form of government is majoritarian. But what about the idea the judges are a counter-majoritarian check on the two political branches?

Obviously, this check is in the form of interpretation, not actual policy-making, but I see this as a way to protect the rights of minorities.

Judicial restraint, as in choosing to substitute the will of the legeslature for any interpretation the judiciary has, would thus be seen as abdicating a vital roll in the checks and ballances that keep us from turning into a tyrany.
1.24.2008 9:37am
American Psikhushka (mail) (www):
Sk-

This is a silly argument, because it applies equally to judges. If voters are ignorant of many laws that legislators pass, they are equally ignorant of the laws that judges overrule. This point does nothing for your argument.

It's silly if you think undermining the basis of his opponent's argument is silly. Orin was the one that based his position on the "consent of the governed". Part of a judge's job is to look out for laws that have passed the "consent of the governed" (which, as Ilya points out is not really the case) but that conflict with the federal and state Constitutions, other laws, etc. In many cases looking to make sure that minority interests are not being trampled by the tyranny of the majority or powerful political interests. After all, if they didn't we would be left with silly possibilities like 51% of the "governed" supporting legislation to enslave the other 49%.

So if one's argument is that judges shouldn't strike down legislation that supposedly has majority support but conflicts with the Constitution, etc. you are basically arguing that judges shouldn't perform one of their key functions.

Or another way to counter Orin's argument is to point out that as the "supreme law of the land" the Constitution is where the ultimate "consent of the governed" lies and anything that conflicts with it likely does not bear the true "consent of the governed". Especially when as Ilya points out legislation is often passed with large swaths of the public ignorant of it and is often drafted at the behest of special interests that in no way, shape, or form represent the "governed".
1.24.2008 9:38am
Loophole1998 (mail):
Whoa! Legislation by definition has the consent of the governed because it is enacted by a body whose job is to create substantive policy. If the legislators fail, they can be voted out and new legislator will be empowered to create new legislation.

Judges are not similarly free to create substantive policy. They decided cases. We can't vote in new judges and expect them to, effectively "pass legislation" changing the previously-expressed views of the bench. It necessarily has to happen on a case by case basis.

Bottom line, it is much easier for the electorate to effect legislative change through the legislative branch. It's what the legislative branch is there for.
1.24.2008 9:49am
Brett Marston:
Ilya: the reference to Peretti doesn't really address the question of judicial restraint. Peretti herself explains why. If tomorrow, every S.C. justice woke up, discovered his or her inner Brad Smith (or Ilya Somin), started striking down significantly more laws, and had a tin ear for the political reaction that this approach would entail, it's not clear that public acceptance of the Court would remain constant. Peretti's argument is that judges are free to decide ideologically, but they must also have the political sensitivity necessary to do so effectively. She advocates for political judging because she thinks that judges who care about political outcomes will also develop the political skills necessary to figure out how best to reach those outcomes.

On this view, giving Congress deference may be necessary at times, as a political matter. But this doesn't fit very well with your general approach - namely, that "a properly restrained judge should vote to strike down statutes whenever they violate the text and original meaning of the Constitution, without giving the legislature any special deference." (Source here.)

If anything, Orin's counsel of restraint is probably closer to the political wisdom that Peretti advocates, than your vision of the originalist judicial buzz saw is. Orin's defense of judicial restraint is grounded on a different argument than Peretti's, but the outcomes might look the same a lot of the time.
1.24.2008 9:49am
Chris Bell (mail) (www):

Or another way to counter Orin's argument is to point out that as the "supreme law of the land" the Constitution is where the ultimate "consent of the governed" lies and anything that conflicts with it likely does not bear the true "consent of the governed". Especially when as Ilya points out legislation is often passed with large swaths of the public ignorant of it and is often drafted at the behest of special interests that in no way, shape, or form represent the "governed".

I agree with this. Judges strike down laws enacted by a majority based upon a Constitution enacted by a super-majority.
1.24.2008 9:49am
govols:
Ilya,

Aren't points 1 and 2 in contradiction? If voters are rationally ignorant about policy (agreed), why should we expect them to care about USSC decisions? Why should their opinions on the Court be taken seriously? I've haven't read Peretti's book in a while, but my memory of her empirical work was that the public didn't care about the Supreme Court, unless they didn't like the outcome of a decision. Stable and substantive opinions on high-order topics like judicial review or "activism" were absent. Correct me if I'm wrong.

Zombie Richard Feynman,

The problem with the "protect minorities" theory is that there isn't a great deal of evidence the Court has actually done this. Much of the historical work I've read about the Court since the Civil War has suggested that the Court has primarily sided with the dominant national political coalition against state or local outliers. You can't take this too far, of course, but for example, the Warren Court worked with, not against, the Kennedy and LBJ administrations in most of their important decisions. Without this support--most obviously from the judicial selection process--it's unlikely to imagine the Court "sticking up for minorities" in a way that truly goes against the will of the majority.
1.24.2008 9:54am
T. Gracchus (mail):
I am curious how Orin and Ilya fit this discussion with originalist bent in constitutional interpretation. Consent of the governed is pretty hard to square up with originalism of any kind.
1.24.2008 9:57am
Simon Oliver Lockwood (mail):
martinned: Judges have often done more than veto legislation. They have been known to impose new requirements on the government -- including ordering the legislature to raise revenue to meet a specific purpose that they have decreed a "constitutional right."
1.24.2008 9:57am
BruceM (mail) (www):
I question the notion that the majority view deserves special protection, which seems to be assumed by Ilya and particularly by Orin. I'd cite to Federalist 10 for the general principal that the actions of the majority are not presumed to be sacrosanct.
1.24.2008 10:06am
Milton (mail):
I discount the point that legitimacy exists as government gets closer to the people. By that standard, any law that is passed by referendum is more legitimate than a law passed by congress. But sometimes the majority doesn't necessarily pass laws that uphold the rights of the minority. Also, by the standard of legitimacy, segregation would have lasted an awfully long time in the south (segregation was legitimate, wasn't it?), and the internet decency laws would all have been solidly upheld because they were passed by congress overwhelmingly (in which case this conversation might not even be taking place).

Also, don't forget, the legislature can amend the Constitution if it sees fit to do so and if it can get 3/4ths of the states to agree. Congress could, if it sees fit, completely eliminate the judicial branch through constitutional amendment. Congress and the states haven't done so just yet, which indicates to me that these people still value an independent judiciary.
1.24.2008 10:06am
Milton (mail):
I discount the point that legitimacy exists as government gets closer to the people. By that standard, any law that is passed by referendum is more legitimate than a law passed by congress. But sometimes the majority doesn't necessarily pass laws that uphold the rights of the minority. Also, by the standard of legitimacy, segregation would have lasted an awfully long time in the south (segregation was legitimate, wasn't it?), and the internet decency laws would all have been solidly upheld because they were passed by congress overwhelmingly (in which case this conversation might not even be taking place).

Also, don't forget, the legislature can amend the Constitution if it sees fit to do so and if it can get 3/4ths of the states to agree. Congress could, if it sees fit, completely eliminate the judicial branch through constitutional amendment. Congress and the states haven't done so just yet, which indicates to me that these people still value an independent judiciary.
1.24.2008 10:06am
Temp Guest (mail):
It seems to me that there are two key issues here: (1)what is meant by "severely constrained; and (2) the dangerous momentum set be precedent and stare decesis.

If judges were truly constrained by (in descending order of precedence) the Constitution, common law, precedent, and "black letter law" and always deferred to the most straightforward possible interpretation of each (and also the most widely accepted current interpretation of each), then I think that few people would have a problem with judicial supremacy. The problems arise when judges start basing their decisions on random thoughts they've gotten from their latest Book-of-the-Month-Club read, slipshod interpretations of imaginary international laws, references to their reading of current public attitudes, and imaginary constitutional umbras of penumbras that support their latest harebrained ideas.

Another issue is the momentum of precedent which seems to have increased over time as judges have grown more frowardly overbearing. It took a half-century to go from Holmes creation of the exclusionary principle to Miranda. It took only a decade to go from Griswold v Connecticut to Roe v Wade and another decade to Sullivan v Texas. Judges are more and more using precedent to rapidly destroy long-standing and venerated law that it is best left to the legislatures to modify gradually and democratically, if at all.
1.24.2008 10:21am
NLW:
Learned Hand nailed it 60 years ago:

"For myself, it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which assuredly I do not."
1.24.2008 11:38am
Ilya Somin:
This is a silly argument, because it applies equally to judges. If voters are ignorant of many laws that legislators pass, they are equally ignorant of the laws that judges overrule. This point does nothing for your argument.

I don't claim that judges derive legitimacy from the fact that people know about the laws they strike down. The other side, however, claims that legislatively enacted laws are "legitimate" because they have democratic consent. THe political ignorance point shows that that is not true in the case of most laws.
1.24.2008 11:50am
Ilya Somin:
Another silly argument. You are in fact suggesting judicial reveiw is desirable merely because the vast majority of the public approves it.

Not at all. I'm merely saying that that proves judicial power has legitimacy in Orin's sense of the word. However, I have never claimed that Orin-style legitimacy is especially important and I certainly don't consider it sufficient to justify judicial review in and of itself, aside from other considerations.
1.24.2008 11:52am
Ilya Somin:
Public opinion polls equally reveal, repeatedly, that one of the most respected professions in American society are military officers. If military officers effected a military review of laws, and they remained popular, would their actions be 'legitimate'? In effect, is a coup acceptable in American democracy as long as it is popular?

It would indeed be legitimate in Orin's sense of the term. That doesn't mean it would not be a harmful development for a variety of other reasons. Moreover, the analogy between judges and military officers is flawed because polls show that the public speicfically approves of the former's role in striking down legislatively enacted laws. To my knowledge, there is no evidence that the majority of Americans want the military to play such a role.
1.24.2008 11:54am
Ilya Somin:
Williams F. Buckley, Jr. once said he'd rather be ruled by the first hundred people in the phone book than by the faculty of Harvard. I think he'd be on Orin's side in this debate.

Maybe. But the pool of federal judges bears little similarity to the Harvard faculty. And the set of people who make laws in Congress are a lot worse than the first hundfed people in the phone book.
1.24.2008 11:55am
Jim Hu:
govols,

I don't think I understand what you're arguing about the courts not protecting minorities. In the context of this discussion, any time a court strikes down a law, it is overturning the will of the legislature, which in this discussion is a proxy for the majority...somewhere.

Of course, when the federal courts strike down state laws I suppose one could argue that they may be imposing the national majority consensus on a statewide majority. Is that what you mean?
1.24.2008 12:20pm
Dangermouse:
Congress could, if it sees fit, completely eliminate the judicial branch through constitutional amendment. Congress and the states haven't done so just yet, which indicates to me that these people still value an independent judiciary.

Give it time. People won't submit to an oligarchy forever. I think we should abolish the judicial branch entirely. Arbitration is slowly doing that anyway, and unfair arbitrations are exposed by the press, which forces fairness on the parties. Courts don't change the way government operates, either. Once again, exposure and political pressure do that. Courts are completely useless. Judges only serve now to advance agendas that otherwise have no popular support.

This country would be entirely better off if the courts were abolished completely.
1.24.2008 12:54pm
Laserlawyer:
Beware any retort that begins with the assertion that the opposing view is "silly." This is usually just a way to have the opponent re-argue his case as if it has been reduced to rubble merely by the retort.

Those who lack effective arguments often resort to such name-calling.
1.24.2008 1:17pm
Crunchy Frog:

Beware any retort that begins with the assertion that the opposing view is "silly." This is usually just a way to have the opponent re-argue his case as if it has been reduced to rubble merely by the retort.

Those who lack effective arguments often resort to such name-calling.


Now that's just silly.
1.24.2008 1:36pm
Stormy Dragon (mail) (www):
I think another issue with legitimacy questions is when 'consent of a portion of the governed' becomes 'consent of the governed'. Dr. Kerr is rightly skeptical of the legitimacy of one person forcing a regulation on everyone else, but is 51% of the population forcing one on the other 49% significantly more legitimate?
1.24.2008 2:25pm
Loophole1998 (mail):
Stormy,

Consent does not flow merely from the last election. The next election also constrains behavior. A representative elected on a 51-49 margin is likely to be mindful of the desires of his/her entire electorate.
1.24.2008 2:50pm
Stormy Dragon (mail) (www):
>Consent does not flow merely from the last election. The
>next election also constrains behavior. A representative
>elected on a 51-49 margin is likely to be mindful of the
>desires of his/her entire electorate.

Congratulations on recovering from your coma. It's a shame you missed the last 10 years, though. ;P
1.24.2008 2:58pm
Randy R. (mail):
Strange, but few people here have shown any interest at in minorities. Suppose Congress declares that Christianity is now the official religion of the US? Clearly unconstitutional, but legitimate in the eyes of many. But I suspect that there are few Jews, atheists, Hindii and others that might take offense and say that they law is illegitimate. What then?

The Colorado case is another great example. Some conservatives were upset that a few cities in Colorado were (gasp!) preventing discrimination against gay in housing and employment. So they got a state referendum to prohibit the cities from ever granting gays any rights.
The Supreme Court struck it down, and rightly so, in my opinion. In a way, the conservatives were hoisted on their own petard, since they claimed that a state could overrule the wishes of the smaller municipalities, but that left them vulnerable to the fact that the US constitution overrules any state action.
In other words, if the cities acted illegitimately, then so did the state. Or vice versa.
1.24.2008 10:05pm
Brett Bellmore:

So they got a state referendum to prohibit the cities from ever granting gays any rights.


Not quite. The referendum left 'gays' with all the same rights everybody else had, such as the right to vote, right to trial by jury, right to keep and bear arms. It just would have prevented them from being elevated to a 'suspect class', where suddenly everybody else starts losing their usual right to decide who they're going to hire, rent a room to, and so on.
1.24.2008 10:36pm
Brett Bellmore:
To make this clear, I do not want to live in a world where "Everything that's not mandatory is forbidden." And that's where this anti-discrimination nonsense is taking us, step by step. The people of Colorado decided they didn't want to take the latest step towards that dystopian future, the Supreme court decided that they wouldn't be permitted any say in the matter.
1.24.2008 11:05pm