Philosophical Foundations of Judicial Review

In this chapter, the author argues against those—Waldron, Kramer, Bellamy, and Tushnet—who contend that judicial review is a kind of trade-off between the normative goals of minority rights protection and democratic self-government, suggesting that judicial review fulfils some key democratic functions. She argues that, when seen from a holistic perspective rather than a narrowly juricentric one, judicial review can be seen as an institution of democratic control to the extent that its justification partly derives from the right of affected citizens to effectively contest the political decisions to which they are subject. This is not an argument for giving judges authority to invalidate statutes. Whether or not that is appropriate will depend on contingent factors about the particular legal order. Rather, this chapter seeks only to remove one but very important objection to judicial review, an objection that sees the trade-off as illegitimate because it is inherently undemocratic.