In a recent speech justifying citation of foreign law, Justice Ruth Bader Ginsburg claims that judicial review spread in Europe because of the experience of the Holocaust:
She also offered a theory about why after World War II nations around the world started to create constitutional courts with the power to strike down legislation as the United States Supreme Court has.
"What happened in Europe was the Holocaust," she said, "and people came to see that popularly elected representatives could not always be trusted to preserve the system's most basic values."
Ginsburg's argument is extremely dubious. As co-blogger David Bernstein points out, there is little if any evidence that the Holocaust influenced the adoption of judicial review in Europe. Some European democracies already had judicial review even before World War II. And the Holocaust was not carried out by "popularly elected representatives," but by a Nazi dictatorship. German public opinion in the 1930s was highly anti-Semitic; but there is no reason to believe that a Holocaust would have occurred absent the rise of a nondemocratic totalitarian state. Indeed, German Jews enjoyed legal equality under the democratic government of the Weimar Republic (though there was of course a great deal of informal public and private discrimination against them). Democracy has many serious flaws, some of which I have analyzed in my own scholarship. Indeed, I am probably much more skeptical about democracy overall than Justice Ginsburg is. But no democratic government has ever committed mass murder or genocide against its own citizens.
Perhaps Justice Ginsburg merely meant to say that judicial review was needed to prevent democracy from being replaced by a dictatorship, which in turn could go on to commit atrocities similar to the Holocaust. Some 1930s and post-World War II Europeans surely did see judicial review as a possible obstacle to the rise of authoritarian political movements. However, the Weimar Republic actually did have judicial review. Yet German judges did little to prevent the Nazis from taking over. Indeed, many of the judges supported parts of the Nazi agenda and collaborated with the Nazi regime when it came to power. This doesn't prove that robust judicial review is undesirable. But it does suggest that the rationale for judicial review can't be based on its supposed ability to prevent future Holocausts.
Related Posts (on one page):
- Justice Ginsburg, the Holocaust, and Judicial Review:
- Citing Foreign Law, the Culture Wars, and the Law Review Article Hypo:
- Ginsburg on Citing Foreign Legal Decisions: