In his latest contribution to our exchange, my co-blogger Ilya credits me with creating a novel new theory of judicial review, and after so crediting me, concludes that my new theory is interesting but inconsistent with my prior posts. However, I am afraid he misunderstood my last post; I did not mean to suggest such a position. In this post I want to clarify my views just to make sure there is no misunderstanding.

  First, let me back up to make sure we're all on the same basic track. I believe the basic question in our exchange boils down to how eager courts should be to invalidate legislation. Ilya and I both agree with the sound principle of judicial review: If a law is contrary to the Constitution, then it is is void. The question is how judges should approach the question of determining whether a law is unconstitutional. On my end, I argue that judges should approach this question with humility. They should presume that properly enacted laws are constitutional, and they should not strike down laws unless it is clear that the law crosses the line and is unconstitutional. If I understand Ilya correctly, he believes that judges should be bold in striking down legislation. They should not presume laws are constitutional, and they shouldn't hesitate to strike down laws if they have a theory, personally persuasive to them even if not widely held, that the law is unconstitutional.

  In our series of posts, Ilya and I rooted our approaches in different views of legitimacy. I argued that judges should approach their role with modesty because constitutional theory is too often cover for political views: Libertarians have libertarian theories, progressives have progressive theories, etc. No one can agree on the right theory, and everyone seems to have a theory that matches up very nicely with their political views. In light of this, an aggressive judicial role based on controversial theories would often end up imposing the judge's policy preferences over that of the people. Ilya countered by pointing to the Supreme Court's relatively high popularity ratings. To be candid, I'm not entirely sure of why Ilya considers the Supreme Court's approval ratings to be relevant. But as best I can tell, the idea is that If the Supreme Court is more popular than the elective branches then it must mean that "the people" actually like its decisions and want it to take an aggressive role.

  In my last post, I pointed out what I think is a pretty basic error with Ilya's reliance on the Supreme Court's approval rating in his argument: The Supreme Court we have is not the Supreme Court that Ilya wants. That is, my understanding is that Ilya wants the Supreme Court to change course. He wants the Court to start to take on an aggressive judicial role, rather than have the generally deferential and majoritarian approach it usually employs now. If that's right, then I don't know why the Supreme Court's current approval rating is supposed to support Ilya's claim of public support for the role he would like them to take. To the extent the Court's approval ratings reflect agreement with the Court's decisions as policy — which I think is true only modestly, for reasons suggested below — the Court's approval ratings presumably reflect in part its majoritarian role. If you change that role, as Ilya would like, then the Court's approval ratings would presumably change.

  Just to be extra clear, though, I didn't mean to suggest that I agree with Ilya's notion that approval ratings are sign of whether a legal institution reflects the consent of the governed. I made the narrow point I did in my last post to point out that even if you accept Ilya's assumptions that this is true, reliance on the Court's current approval ratings can't make the point Ilya wants. Unfortunately, I must have made this point poorly, because Ilya read this as an acceptance of his assumptions and then the creation of a novel new theory in which state and federal laws should receive different degrees of deference. To the contrary: I do not think a legal institution's popularity reflects whether its decisions are consistent with the consent of the governed.

  In the case of the Supreme Court, for example, very 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. There is presumably some connection between the Court's popularity and public agreement or disagreement with its decisions. If the Court started striking down a lot of popular laws, then I would expect its popularity to drop. But that connection is indirect at best. And more broadly, as I suggested in my last post, there are lots of ways that the Supreme Court can thwart preferences of minorities while being popular with the majority.

  In any event, I don't know how many readers are particularly interested in this thread, but I did want to correct Ilya's misimpression about the point I was making. And I hope Ilya will correct me if I am misinterpreting his.