I don't know if it's desirable to continue my debate with Orin over judicial power much further. In this post, I will simply summarize some key themes and leave Orin the last word, if he wants it.
As I see it, the main issue under dispute is how much judges should defer to the legislature in cases where they believe that a law it has passed is unconstitutional. In my judgment, no special deference is due. Judges should not give legislatively enacted laws any particular deference and should vote to strike them down in most, if not all, cases where they believe those laws to be in violation of the Constitution. Orin, by contrast, believes that judges should give legislation a strong presumption of constitutionality and only strike it down if its unconstitutionality is overwhelmingly clear; and perhaps only on the basis of theories of interpretation that aren't too controversial.
In our initial exchange, Orin argued that his position is justified on the basis of human fallibility and bias. He claimed that such fallibility cuts against theories of interpretation that would lead courts to strike down "lots of laws." In response I pointed out that fallibility and bias apply just as much to the legislature as they do to judges. Therefore, general flaws of human nature can't justify judicial deference to the legislature, which is also run by fallible humans. In later posts, Orin instead sought to justify his position on the grounds that legislation enjoys superior "legitimacy" because it has the "consent" of the people. Legitimacy, as defined by Orin, has therefore become the crux of the debate. In my view (elaborated most fully in this post), there are three crucial flaws in Orin's legitimacy argument:
1. Widespread political ignorance ensures that most legislatively laws don't actually enjoy any meaningful "consent" from the majority of the people.
2. The majority of the people actually approve of the Court's role in invalidating what it sees as unconstitutional legislation. Indeed, the Court enjoys much higher approval ratings than Congress.
3. Judicial invalidation of legislation does not merely represent the unsupported opinion of a handful of judges, at least not to the extent that Orin assumes.
Orin's latest rebuttals focused on Point 2 above (which is not to say that he agrees with 1 and 3). He argued that the Court is popular primarily because it has not acted to strike down popular legislation very often and that its high approval ratings are largely due to this fact. If it were to play the more aggressive role I envision, its popularity with the public would decline. My answer is that this argument rebuts Point 2 only with respect to rare, highly popular legislation. The vast majority of legislation does not fall into this category. Thus, the logic of Orin's answer is that Point 2 does rebut his conjectures about the Court's legitimacy with respect to the vast majority of laws that don't enjoy any great degree of popularity. Indeed, the majority of the public probably has not even heard of most of those laws.
This is where, Orin claims, I misunderstood his argument. Perhaps I should have made clear that, even though Orin subjectively may stick to his original view that nearly all legislation deserves a high degree of judicial deference, the logic of his latest response gives away a large portion of the game. That is what I meant when I wrote that it is an important "Modification" or "clarification" of his theory; but I admit I should have made my point clearer. My bottom line on this issue is that the Court can indeed strike down "lots of laws" without impairing its "legitimacy" as Orin defines that concept.
In closing, I want to emphasize that I do not myself believe that the justification of judicial review rests on "legitimacy," as Orin defines it. In my view, it rests on a more general need to enforce a written Constitution against a legislature and executive with very strong tendencies to increase their power beyond justifiable bounds. It rests, also, on my view of the shortcomings of the democratic process; the quality of the latter is often undermined by widespread political ignorance and interest group power.Judges, of course, have their own significant shortcomings. That is why the power of judicial review should, in my view, be limited to negating the actions of other branches of government, thereby leaving greater scope for individual freedom and the private sector. I am much more skeptical of the kind of assertions of judicial power where judges themselves take over and run complex institutions such as prisons and schools, though I recognize that the latter may be justified in extreme cases (notably the Jim Crow-era South).
I recognize, of course, that the last paragraph is very general and fails to address a host of details and possible counterarguments. In this debate, I have mostly focused on criticizing Orin's position on internal grounds. Perhaps I erred in not doing more to advance my own approach to judicial review. That, however, will have to wait for another time.
UPDATE: I should take note of one other point Orin made in his last post. He claims that public approval of the Supreme Court doesn't necessarily reflect support for its decisions because:
[V]ery few people have any idea of what the Supreme Court does. And among that small group, only a very tiny minority has any understanding of why it does it. Given that, approval ratings will tend to reflect a lot of stuff beyond whether the public agrees with the Court's decisions as matter of personal preference.
I agree that very few people actually know much about what the Court does. But the same can be said for legislatures. However, my point was that these approval ratings and other survey results do show that the vast majority of the public approves of the Court's institutional role in invalidating legislation it believes to be unconstitutional, even if it doesn't know much about the specifics of individual decisions. The majority of the public does not seem to endorse Orin's highly deferential view of judicial power. Perhaps they would agree with him more if they knew more about the Court. But if popular "consent" only matters in Orin's theory if it is backed by extensive knowledge, he would have to accept my point that widespread political ignorance ensures that most legislatively enacted laws also lack such consent.
UPDATE #2: I probably should have paid greater attention to Orin's statement in his last post that he "do[es] not think a legal institution's popularity reflects whether its decisions are consistent with the consent of the governed." I would think that an institution's popularity is at least to a large extent based on whether people agree with its decisions or not, or at least with its role in the decisionmaking process. Perhaps I erred in assuming that Orin's emphasis on "consent" implies a need for actual agreement by the majority of the public with an institution's decisions, or at least acceptance of its institutional role. If Orin has some completely different and more idiosyncratic definition of consent in mind - one that has no connection to agreement - he may have to explain it and also explain why it is that the legislature embodies it more than the courts.
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