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:
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- Limited Government, Politics, and Judicial Review:
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- 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:
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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.
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.
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.
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.
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
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.
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.
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.
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".
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.
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.
I agree with this. Judges strike down laws enacted by a majority based upon a Constitution enacted by a super-majority.
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.
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.
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.
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.
"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."
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.
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.
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.
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.
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?
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.
Those who lack effective arguments often resort to such name-calling.
Now that's just silly.
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.
>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
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.
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.