Judicial Review And Democracy II: The Legislative Source of Judicial Power

In my last post, I noted that the idea that courts are “counter-majoritarian”
is not a useful basis for a critique of the courts. This is not to say, however, that there are
no potential objections to judicial review from the standpoint of democratic
theory. The first set of objections is
strictly normative. On can concede—like John
Hart Ely did—that Roe is not “counter-majoritarian”
and still believe it was incorrectly decided, and the same is true for any
other case. Jeremy Waldron’s objections
to judicial review—which I actually find problematic in a number of respects—fall
into this category.  Allow me bracket
those type of objections for the time being; I don't have any grand theory of constitutional interpretation to offer anyway.  Instead, I’d like to focus on something else:
the fact that courts and legislatures are not always locked in a zero-sum
struggle for power, as most critiques of judicial review assume. I want to suggest, rather, that the courts
and legislatures are in sometimes in cahoots, and that this opens up new ways
of thinking about judicial review. I’ll
start with some empirical examples…

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