Judicial Review: It's Not Just for Wacky Libertarians Anymore


I see that over at TAPped yesterday, Matt Yglesias commented on my defense of judicial tyranny from last month. (Note pundit rule 307: When one of your journalist friends makes a point of referring to you as "my friend" in print, they're probably about to observe that you "[subscribe] to a morally bankrupt fringe ideology." Fortunately, it wasn't "my good friend," which would've signalled an upcoming reference to my penchant for puppy torture.)

Anyway, Matt's main purpose is to point to this Legal Affairs debate and the "venerable tradition" of opposition to judicial review from the left, as represented there by Mark Tushnet. (If you subscribed, you'd already have Nick Gillespie's interview with Tushnet from our July ish in your hot little hands.) In the April web piece, I largely argued that judicial review ought to be congenial to people who style themselves conservatives, as a check on impulsive majorities and a mechanism that tends to slow the growth of state power. But I think there's plenty of features there that ought also to appeal to liberals.

First, my impression of Tushnet's main thesis was that the courts make less difference than we're usually led to believe: That anything there's a sustained and intense public desire for will eventually make its way past the courts. Judicial review, in other words, is good at checking impulsive majorities—ill considered legislation that lashes out at some unpopular minority—but less so their considered will. And if you look at the memorable cases of the last century of jurisprudence, it's hard to see what (on net) liberals have to dislike about it. The courts have been far less vigorous than I might like in cabining in economic regulation to that authorized by the enumerated powers in 1.8. They've been a lot more aggressive about blocking restrictions on "indecent" or otherwise unpopular speech, about creating safeguards for criminal defendants (though, again, less than I might like when it comes to the Fourth Amendment and the drug war), and about stanching the bleed-over of religion into politics.

This may sound a bit panglossian ("conservatives should love it! and liberals too!") but I don't think there's a real contradiction: To the extent that the Constitution is the focus of an overlapping American consensus—basic principles with which liberals and conservatives both are supposed to pretty much agree with—both should on net benefit from a system where some entity relatively shielded from short-term political pressures can block deviations from that consensus, even when the blocked deviations are sometimes in the direction one prefers. Think of it as enforcing the cooperative solution in a Prisoner's Dilemma: You may not like being stopped from defecting, but it's sure better than the outcome that obtains when everyone can defect.

Taking a brief look at some of the sources Matt cites: Jeremy Waldron argues (inter alia) that "liberal outcomes" in other countries "make nonsense of the claim that popular majorities will not usually uphold the rights of minorities." I wish I were as sanguine, but the annual survey conducted by the First Amendment center of popular regard for free speech rights makes for unsettling reading on this score.

There's also a point I think both Waldron and Tushnet give too little weight. Tushnet emphasizes the relative importance of cultural and political shifts, as opposed to judicial decisions, in driving policy, while Waldron's analysis takes as a background assumption a set of liberal democratic norms and institutions congenial to robust democracy (in which free speech is implicated) and minority rights. But while Tushnet is right enough to observe that judicial doctrine and the public political culture are not independent variables, the feedback runs in both directions here. That is, if people are committed to liberal values (and, again, just how much that's true is an open question), mightn't it be at least in part because we've got not just a Constitution that sets out those principles, but a judiciary that routinely reaffirms them in relation to contemporary controversies?