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."
All Related Posts (on one page) | Some Related Posts:
- A Final Response To Ilya:
- Limited Government, Politics, and Judicial Review:
- What if The Public Doesn't Like Limited Government? A Response to Ilya:...
- One Last Response to Ilya:
- Judicial Review, Democracy, and Legitimacy:
- Human Imperfection and Governmental Legitimacy: ...
- Conservative Legal Academics, McCain-Feingold, and "Judicial Restraint":
- Conservative Legal Academics and the Constitutionality of McCain-Feingold:
- Brad Smith on John McCain: