Jeffrey Howard

Imperfect Rule: Political Legitimacy, Judicial Review, and Moral Failure

Judicial review has attracted sustained attack for its purported lack of democratic credentials. According to the enemies of judicial review (e.g. Jeremy Waldron), this practice – which legally empowers judges to strike down majority-enacted legislation that they contend violates individual rights – effectively outsources decision-making that properly belongs to deliberating citizens to unelected philosopher-kings. Defenders of judicial review (e.g. Samuel Freeman, Corey Brettschneider) respond by inflating the definition of democracy so as to include substantive liberal commitments, thereby enabling them to claim that overturning majority-enacted legislation, when such legislation is an affront to liberal justice, actually honors, rather than disgraces, democracy’s constitutive ideals. My paper argues against both of these approaches, contending instead that we should unite the most plausible elements of both. I will argue that while judicial review’s critics are correct to conceive of democracy as analytically distinct from liberalism – i.e., democracy is the system of legal decisionmaking in which laws must be authorized by those subject to them (following David Estlund) – it remains the case that the justification of democracy depends on its tendency to promote outcomes that are reasonable by the standards of liberal justice. That fact grounds my argument that judicial review can be justified when deployed against legislation that contravenes the most fundamental standards of liberal justice. Such judicial review is undemocratic, but not objectionably so, given that democracy has no justificatory force when it produces grossly unjust outcomes. Nevertheless I argue that judicial review is only justified when the legislation it condemns fundamentally imperils the standing of citizens as free and equal – when it concerns legislation that is deemed unjust by all reasonable conceptions of justice that belong to the family of liberal conceptions. In the case of legislation subject to reasonable disagreement among the liberal conceptions, judicial review is illegitimate, owing the fact that any argument that could justify judges’ moral expertise is subject to reasonable controversy. When we as citizens ask ourselves who should make fundamental philosophical judgments about which reasonable course of action our state should pursue, the answer is: we should. The paper concludes by casting judicial review as one instance of the various measures that reasonable citizens ought to pursue in order to assist fidelity with their own moral convictions, given their recognition of their own fallibility – the recurrent possibility for moral failure. In this way, I cast judicial review as a non-ideal mechanism for a society of morally committed but imperfect people – a mechanism that has surprisingly more in common with the institution of punishment than has been supposed.