Democracy and Judicial Review

Over the past century, the language and the practice of rights have taken prominence in political discourse especially in liberal democratic societies. Important battles have been fought to set out the limits of state intervention and to determine what citizens can and cannot do in their public and private lives. A great number of these battles have been resolved not in the political arena of legislatures and/or electoral races, but in the courts by means of judicial review. Concerns about the democratic nature of this practice of judicial review and its legitimacy have been raised. Some thinkers, like Jeremy Waldron, sustain that judicial review of rights should not be part of a democratic government, since judicial review is an undemocratic practice. Yet, others like Mattias Kumm, think exactly the opposite: that judicial review is compatible with democratic legitimacy; and moreover, that a democracy without it is deficient.

Waldron sustains that in order to evaluate the democratic value of judicial review we should refrain from looking to the fact of how well this practice does in producing good outcomes. He sustains democratic value cannot be found in the outcomes, but in the process of how the decisions over rights are taken and who is taking those decisions. He argues that even if judicial review produces good outcomes, the practice is undemocratic and politically illegitimate since: 1. it does not provide for a way to society to focus in the real issues at stake when citizens disagree about rights; and 2. it privileges a small number of unelected and unaccountable judges over a voting majority. Kumm, on the other hand, defends judicial review when it incorporates the proportionality test, since the incorporation of this test represents for him the incorporation of democratic values. Yet, Kumm seems to be in accordance with Waldron main contention that the test of legitimacy and democracy is one that should be done with disregard to the fact that the practice of judicial review produces or not good outcomes. Before one can evaluate in depth Kumm and Waldron’s proposals and highlight where their arguments fail, I believe to be necessary first to consider the soundness of this point of convergence between the two of them.

I do not agree with theses two thinkers in that judicial review as a practice should be evaluated on terms of its democratic value without taking into consideration the results it produces. I believe that in order to weight its democratic value, we should consider how well judicial review does in producing good outcomes as well as how democratic the process of deciding rights through judicial review is. Although Waldron seems to be worried about a system producing bad outcomes when it comes to deciding rights, he seems to think that these “rare instances” in which rights are erroneously appointed or wrongly unrecognized are endemic to the democratic process and should not be taken into account unless its occurrence becomes pathological. For him, outcomes do not contribute to the democratic process. However, this approach obviates one of the central pillars of democracy, consent. As Kumm rightly points out, consent, and not majorities, is the base for democracy in contemporary liberal democratic societies.

If we take this to be truth, then we should agree on the contention that people consents to enter into a democratic government as long as certain rights which they deem essential and have written down in a document like a Bill of Rights are respected and enforced. In fact, minorities acquiesce to enter into a government directed by the wishes of the majority precisely because they have, in this system, for their protection against the tyranny of the majority the agreement over the recognition of certain rights. Yet, for this to work, the agreement over rights requires that mechanisms be put into place to assure that the decisions of the majority are kept within the limits of the recognized rights. Otherwise, the consent of the minorities would not be truly a consent since an essential part for forming that consent is lacking. Thus, if mechanisms to constrain the actions of the electoral majority with regards to the decision-making process over rights are absent, then the democratic enterprise would crumble down, and the system should be considered undemocratic. This means, that the outcomes of the decision-making process over rights should be taken into account when evaluating its democratic value.

 Since rights are usually open texture and institutions which are based on the votes of the majority of the electoral population can override easily the agreement over the rights and/or obviate without much problem the justifications recognized under the democratic system to restrict the meaning of a particular right, we need an institution and/or a procedure that can guarantee that those rights and those justifications are observed. Judicial review does exactly that work. Indeed, what judicial review does best is: it reduces the instances in which, using the terminology of Richard Wollheim, the “paradox of democracy” occurs. In other words, the job of the judges vested with the responsibility of judicial review is to assure that the consent of the minorities is not being diminished by the actions of the electoral majority. They are able to do so by making reference to the document which collects the rights deemed as essential in their open texture form and by evaluating if the justification for limiting the meaning of the rights has been followed. By so doing, judicial review contributes to the preservation of democracy in a liberal democratic society.

At the same time, judicial review is a legitimate democratic institution since it is created by the majority of the voters. First, the majority of the voters have consented to create an institution/procedure that assures that the rights they have recognized as vital will not be violated. Second, they have agreed on a mechanism to select the ones who are called to guarantee this democratic safeguard. Third, they elect the persons who will nominate and eventually select the officers who will be responsible for engaging in judicial review. Fourth, before judicial review takes place the majority of the electorate is able to enforce their particular meaning for a right through the legislative process. Finally, the majority of the voters are represented also during the process of judicial review and their reasons for implementing determinate meaning of a right are heard and considered by the judges.

Thus, the process of judicial review retains in every stage a compromise to democracy not only by respecting consent but also by acknowledging the important role the decisions of the majority play in a democracy. Likewise it is democratic since the judges – because of their process of appointment – also hold democratic credentials as the legislators do. That they are not of the same degree as the legislators, as Waldron points out, is true. But a democracy does not require that all the persons making decisions over rights should hold the same democratic credentials. What a democracy requires is that the persons making the decisions over rights hold the appropriate democratic credentials for the task they have been assigned and that democratic safeguards exists in all the stages of the process. Judges hold the necessary democratic credentials to do their job of judicial review. In addition, judicial review offers all the safeguards required by the democratic ideals of consent and decisions by a majority. Thus, it is a mistake not to include the outcome component as part of the democratic assessment of judicial review, as both Kumm and Waldron do. Yet, the greatest mistake is to sustain, as Waldron does, that judicial review is an undemocratic practice when it is an institution/procedure that embodies the most precious democratic ideals recognized as such in contemporary liberal democratic societies.