Sometimes, in order to frame an issue in legal or political philosophy, it is good to begin with some facts. Our topic is judicial review of legislation—a practice that, like many in this subject area, can be justified or disputed in the abstract or considered in light of our experience of how it actually operates. There will be plenty of abstract argument in this essay, in the second and subsequent sections. But I want to begin with our historical experience of judicial review in the history of the United States.
A Disgraceful History
Between 1880 and 1935, more than 170 statutes—state and federal—dealing with labor matters (health and safety, working hours, child labor, unionization) were struck down by American courts. The best known is Lochner v. New York ((1905) 198 U.S. 45), in which the United States Supreme Court held that a New York statute limiting working hours for bakers to 10 hours a day was an “unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract.” This period is often called “the Lochner era,” but it is important to understand how many years it lasted and how much legislation was overthrown. It was enough to demoralize two generations of labor legislators and their supporters (Forbath 1991).
In the United States, a decision of this kind by a court is a big deal. An individual or an organization aggrieved by a statute comes before a court to challenge its constitutionality. The constitutionality is almost always a matter of dispute, in part because the provisions of the U.S. Constitution are so vague. But the courts have the last word on the validity of the statute. It matters not that people have gone to the trouble to secure a majority in both houses or that they have gotten the consent of the governor of the state or, in the case of federal legislation, the consent of the president. It matters not that the legislators have formed their own judgments of the measure’s constitutionality during the several stages of its passage. A court can decline to enforce the legislation, in effect striking it from the statute book. And it can do so by a simple majority decision (five votes to four in the U.S. Supreme Court)—in contrast to the elaborate bicameral and super-majoritarian procedures required in most legislatures. When a majority of judges votes to strike down the statute, all the legislators can do is try to assemble their coalitions and majorities again to pass another bill in somewhat different terms, hoping that this time it will satisfy the scrutiny of the courts. But the courts may well strike it down again, as it struck down statute after statute in the Lochner era. In some circles this is referred to as the “dialogue” theory of constitutional review (Hogg and Bushell 1997).
In other countries, the courts have somewhat weaker powers in respect of legislation. The United Kingdom operates what is sometimes called a system of “weak-form judicial review” under the Human Rights Act 1998, whereby legislation is scrutinized by judges who may issue a formal “Declaration of Incompatibility” between the statute and the provisions of the European Convention of Human Rights. But the British judiciary may not decline to apply legislation that they judge incompatible. The legislation remains on the statute book. What the Declaration does is open the possibility of fast-track amendment in Parliament; but still it is for Parliament ultimately to decide the fate of the statute (Kavanagh 2009; Tushnet 2003; Gardbaum 2001). This seems to me to be an admirable system. It combines ultimate parliamentary responsibility with a “canary in the coalmine” function for the judiciary, exercising whatever expertise they may have in matters of rights to alert the polity formally and publicly to the dangers posed by certain pieces of legislation. Experience shows that these alerts are taken seriously, but this is achieved without undermining the authority of the elected branches of government (Hiebert 2006). In this essay, however, I shall concentrate on the American example. This is because the practice of “strong-form” judicial review that we find in the United States remains normative for many constitutionalists around the world (see Barak 2006 and Dworkin 1990); the British system is sometimes disparaged as a “halfmeasure.” The strong form of the practice shows most clearly the advantages and the difficulties of empowering judges in this matter.
Let us return to the Lochner era. Why was it thought a good idea to give judges, most of whom were unelected and democratically unaccountable, the right to strike down statutes enacted by a representative legislature? One cynical answer is that those who gave the judges this right were afraid that if the common people were enfranchised they might use their legislative power to attack the system of property, wage labor and capitalist exploitation. This has been a perennial apprehension. Since the time of the ancient Romans and the land reforms of Tiberius Gracchus, it is has often been thought that popular rule will endanger the property of the rich, and that therefore those who set up the framework of a new society have a responsibility to guard against this in their constitutional designs. Certainly the threat to property and the sanctity of contract was a theme at the time of the American founding (Nedelsky 1990) and the Lochner era may be seen as playing out this familiar anti-populist trope. Scholars associated with the Critical Studies Movement often lament the fact that today liberal defenders of judicial review seem to have forgotten all about this (Kennedy 1997). They have forgotten how brutally and for how long judicial power was used in America to defeat and demoralize working people and their political leaders. The modern defenders of judicial review tend to represent Lochner v. New York as nothing more than a regrettable mistake perpetrated way back in 1908 (Dworkin 1985: 58)—they seldom pay attention to the length and scope of the Lochner era—and they believe it should not be used to discredit the whole institution of judicial review of legislation, which they think is a necessary and valuable part of a modern constitutional democracy.
They say that the real point of judicial review is to protect everyone—rich or poor—against the worst human-rights abuses. Defenders of the practice worry that democracy is always liable to degenerate into the tyranny of the majority, imposing on members of vulnerable minorities the worst effects of majoritarian oppression and greed. But if this is the point of judicial review, then we have to say it has by and large failed in the United States. The worst rights abuses in the history of the country were bound up with the persistence of chattel slavery for the first 80 years of the republic’s existence. But judicial authority was never mobilized against slavery; on the contrary, judicial review was used many times to strike down legislative efforts to mitigate its worst effects. For example, in Prigg v. Pennsylvania ((1842) 41 U.S. 539), the U.S. Supreme Court struck down a Pennsylvania statute that sought to protect African-Americans from slavecatchers in a free state. And in Scott v. Sanford ((1857) 60 U.S. 393), known popularly as “the Dred Scott case,” the Court struck down congressional legislation (the Missouri Compromise) that prohibited slavery in the territories, and held that Congress was not competent to make a black man a citizen. Almost 30 years later, in the 1883 Civil Rights Cases ((1883) 109 U.S. 3), when the matter of citizenship had finally been settled by war, by executive proclamation and by constitutional amendment, the Supreme Court struck down the Civil Rights Act of 1875, which purported to guarantee access to public accommodations for everyone, regardless of race, color or previous condition of servitude, and the Court also limited the effects of the 1871 Civil Rights Act, which tried to protect African-Americans in the South from racial terror.
Those were some of the Court’s sins of commission—cases where strong-form judicial review made things worse or blocked any attempt to make things better. There were also sins of omission, for example, in Korematsu v. United States ((1944) 323 U.S. 214) where the Court decided that citizens of Japanese ancestry were not entitled to protection from internment in concentration camps in the American interior during World War II, or Plessy v. Ferguson ((1896) 163 U.S. 537), where the Court upheld segregation laws. It was not until 1954, 89 years after the passage of the Fourteenth Amendment, and 163 years after the enactment of the original Bill of Rights, that the Court acted against segregation, and even then its action was hesitant, controversial and bitterly resisted. Its decision, in Brown v. Board of Education of Topeka ((1954) 347 U.S. 483), has been held up as an icon by defenders of judicial review ever since. Cases like Brown, along with the decision that secured reproductive rights for women in the U.S., Roe v. Wade ((1973) 410 U.S. 113), are often presented as the poster children of judicial review. They are cited because they are supposed to illustrate how valuable the institution is for us. But I have taken the liberty here of reversing the order of presentation, beginning with the darker side of the Supreme Court’s decision-making to illuminate front and center what are usually hidden away in shady and embarrassed footnotes.
The cases I have mentioned are cases on which I think there is widespread agreement that the institution of judicial review has not served us well. Quite apart from the objections one might make against its nondemocratic character (objections I shall explore in the second half of this essay), these are simply bad outcomes—outcomes that would have been better if the courts’ power to review legislation had been weaker or nonexistent. Defenders of the practice may say that we should blame the text of the Constitution for these outcomes, not judicial review. They say, for example, that it was the Fugitive Slave Clause of the Constitution that compelled the decision in Prigg v. Pennsylvania and the Contracts Clause that led to Lochner v. New York. But this really won’t do. Without judicial review to amplify their effects and focus them onto sharp-edged political decision-making by the judiciary, such unfortunate provisions in the Constitution might have faded into desuetude, dismissed at the outset as merely admonitory (which is how many Northern legislators actually regarded the Fugitive Slave Clause) and treated as less and less relevant for the purposes of modern politics. We say that a constitution needs judicial review or it will not be enforced; but if judicial review is to be present among us as an active enforcement mechanism we had better pray that we have the right constitutional provisions, because it is difficult if not impossible to change them once judicial authority reveals the actual impact of the clauses. Not only that but in some cases, such as the Dred Scott case, the Court was not simply mapping a clear piece of constitutional text onto the vexed issue of Mr. Scott’s citizenship. The Court went out of its way to dredge the constitutional record for scraps of authority to justify its conclusion that blacks are “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations.” With that as a precedent, we must pray not only that we have the right constitution but that our judges bring to their task the right ideology of personhood, dignity and rights.
Certainly the cases I have cited give the lie to any claim that legislators are incapable of addressing responsibly the rights that (it is said) we need courts to protect. In the first three of the race cases I mentioned—Prigg, Dred Scott and the Civil Rights Cases of 1883—the legislatures had done their work; it was the courts that set about undoing it. We trumpet the achievement in Brown, such as it was. But eventually it was Congress that enacted the Civil Rights Act of 1964 and secured whatever we have in the way of racial and sexual equality. And the same is true of all those cases in the Lochner era: it was legislatures that had discerned the need for certain minimal social and economic rights; it was the legislatures that worked hard to secure them; and it was legislatures that had to do that work all over again after 1935 when the judiciary finally backed down in the face of President Franklin D. Roosevelt’s exasperated threat to pack the Court with justices who would not obstruct the New Deal.
Disagreement on Watershed Issues
So much by way of background. I have set all this out because I believe we should begin our evaluation of judicial review by noting that, like other political institutions, it does not have an unblemished record. Any institution of government may work for good or for ill. This is true of democracy and elective institutions—as the defenders of judicial review have always emphasized—and it is true of judicial institutions as well. Now, the record I have spoken of is uniquely American. Other practices of judicial review around the world have not done the damage that the U.S. Supreme Court did to the rights of labor, the campaign against slavery and the early stages of the enforcement of civil rights. This is partly because the American system of judicial review is much older than the equivalent institutions in Europe and elsewhere. It is partly because other constitutional systems do not empower their courts to do so much damage: I have mentioned weak-form judicial review in the United Kingdom, for example. But even those countries that have strong-form judicial review seem to have used it wisely and helpfully: this appears to be true of Germany, Canada and South Africa, for example, in the modern era, and—though it is a slightly different case—it is true by and large of the way in which the European Court of Human Rights has exercised its powers.
Nevertheless, what is emphatically true of the way in which all these institutions now exercise their powers—the U.S. Supreme Court included—is that they intervene to decide matters on which the polities in question are deeply divided. There is a range of issues that confront every modern democracy, and in every modern democracy that has judicial review they come up for decision by the courts from time to time. Besides the cases about race and social and economic rights that I mentioned already in the first part of this paper, these issues include: abortion, affirmative action, capital punishment, the boundary between church and state, the conditions of imprisonment, the rights of criminal suspects, defamation, the treatment of detainees in the war on terrorism, the disenfranchisement of prisoners, flag burning, gay rights (including same-sex marriage), gun control, hate speech, language rights, military service, minority cultural rights, policies on obscenity and pornography, police powers to “stop and search,” privacy, the precise limits of the free exercise of religion, the regulation of speech and spending in electoral campaigns, and so on. Some of these are more important than others and systems vary in the extent to which certain of them are live issues available for judicial decision: for example, for the most part, legislative control over people’s access to firearms is not a subject for judicial review in Europe, and also some issues (like capital punishment) are settled there even though they are not settled in the United States. But with some variations, the list I have given comprises a set of what I have called elsewhere “watershed issues,” which every modern democracy has to face (Waldron 2002 and 2006).
These watershed issues define major choices that any modern society must face, choices that are reasonably well understood in each society. As things stand, the choices they pose will be settled finally by legislative decision-making in countries that have weak-form judicial review or no judicial review of legislation, and they will be settled finally by courts in countries that have strong-form judicial review. I don’t mean that, in strong-form systems, legislative settlements are never allowed to stand. The first moves on these issues are almost always made by legislators. But even when their decision-making turns out to be final, it is so only on sufferance of the courts. The courts could have struck down the statute; the statute prevails only because it was not subject to challenge before the judiciary or because, even if it was challenged, the judiciary allowed it to stand. As Ronald Dworkin (1996: 74) has put it—and he is a defender of judicial review—on “intractable, controversial, and profound questions of political morality that philosophers, statesmen, and citizens have debated for many centuries,” the people and their representatives simply have to “accept the deliverances of a majority of the justices, whose insight into these great issues is not spectacularly special.”
The choices involved are likely to have a very significant impact on the lives of many people and on the tenor of the society as a whole. So why do some societies let their judges rather than their legislators have the final say on issues like these? Two theories suggest themselves. One is that the watershed issues define important moral as well as political choices, and moral choices are thought to be particularly appropriate for judges to make. Some view them as issues of natural law or natural rights (Moore 2001 and Fleming 2001). But not everyone is comfortable with that language and many prefer to speak, less tendentiously, about moral principles and moral rights. Whatever the detail, these watershed issues are patently issues of principle, not the issues of preference and strategy that—it is said—legislatures are set up to deal with. They engage values such as freedom, autonomy, dignity, equality and the value of human life as well as the more familiar currency of public policy—efficiency, prosperity and security. To the extent that they also involve empirical, economic and strategic issues, which many of them do, those issues are thoroughly entangled with moral conundrums as well. (Think of the debates about capital punishment: the value of life entangled with a policy debate about the best way to fight crime. Or think of affirmative action: the importance of racial and sex equality entangled with a policy debate about the best way to achieve it.) The other theory, better known (though it is not incompatible with the first), is that the choices in question are governed by the constitution of the society in question or some bill of rights that has equivalent authority, and are therefore to be determined as a matter of law, not as a matter of legislative choice. I say the two theories are compatible. The first may explain the second: the constitution or the bill of rights may be framed specifically to cover the moral issues of principle that are likely to arise.