Judicial Review and Democratic Failure ∗

Abstract

We use an agency model to analyze the impact of judicial review on democratic performance. We find that judicial review may increase “democratic failure” by rescuing elected officials from the consequences of ill-advised policies, but may also decrease democratic failure by alerting voters to unjustified government action. We further find that judges will defer to the decision of elected leaders unless the level of democratic failure is sufficiently high. We then show how judicial review affects voter welfare, both through its effect on policy choice and through its effect on the efficacy of the electoral process in selecting leaders. We also analyze how the desirability of judicial review is affected by characteristics of the leaders and the judges. Our welfare analysis establishes general conditions under which judicial review serves majoritarian interests—and thereby arguably increases the “democratic” character of political outcomes, despite the non-democratic nature of judicial review itself. ∗We are grateful to Gabriella Blum, Rachel Brewster, Glenn Cohen, Barry Friedman, Jim Greiner, Leslie Johns, Dimitri Landa, Adriaan Lanni, Gilat Levy, Andrew Martin, Judkins Mathews, Nolan McCarty, Minor Myers, Ben Roin, Frances Rosenbluth, Ben Sachs, Ken Shepsle, Kenneth Shotts, Jed Shugerman, Jeffrey Staton, Bill Stuntz, Adrian Vermeule, Abby Wood, Kathy Zeiler, Aaron Zelinksy and seminar participants at Notre Dame, MIT, Harvard Law School, and Yale University for helpful comments and conversations. †Assistant Professor, Department of Political Science, Yale University, ISPS, P.O. Box 208209, New Haven, CT 06520. Email: justin.fox@yale.edu ‡Assistant Professor, Harvard Law School, Griswold 509, Cambridge, MA 02138. Email: mstephen@law.harvard.edu What is the appropriate role for judicial review in a democracy? When should independent judges be allowed to strike down the decisions of elected legislatures or executives? This question is of enormous practical and theoretical interest. It has been a central focus—some might say an obsession—of American constitutional theory (Friedman 2002; Tribe 2000), and has assumed increasing salience internationally as the power and influence of courts around the world has grown (Hirschl 2004; Tate and Vallinder 1997). Many have defended judicial review as a way to reduce or correct predictable, systematic failures in legislative and executive decision-making—thereby reducing the divergence between actual policy choices and those that would prevail in an ideallyfunctioning representative democracy. Appropriately designed judicial review, on this view, can be justified on democratic grounds, even if judicial review is not itself a democratic institution. Critics, however, have argued that judicial review tends to exacerbate rather than ameliorate democratic failures, and that the costs of judicial review typically exceed whatever benefits it may have. This paper uses a formal model to analyze the impact of judicial review on democratic failure. The analysis elucidates the scope and limits of many of the positive theoretical claims that appear in debates about judicial review, and generates several additional implications. The paper is organized as follows. In Part I, we situate our contribution by presenting a brief overview of the contemporary debate about judicial review. In Part II, we develop a simple political agency model, without judicial review. Analysis of this baseline model allows us to isolate a particular type of democratic failure: the incentive that elections create for less-capable incumbents to take bold action, in order to appear more competent than they really are. In Part III, we modify the baseline model by introducing judicial review, and we investigate how this institutional change affects the incidence and impact of the sort of democratic failure we identified in Part II. We show that judicial review may have two effects on democratic failure: First, judicial review may rescue elected officials from the consequences of ill-advised policies, and this “bailout effect” tends to increase democratic failure; second, judicial approval or disapproval of a policy may affect public opinion of the government that enacted it, and this “legitimation effect” usually tends to decrease democratic failure. We next show that a rational judge’s review strategy depends on the level of democratic failure. If democratic failure is sufficiently rare, the judge would rationally defer to the elected leader, while if democratic failure on some issue is sufficiently high, the judge would flatly prohibit government action in that area; judges rely on their own judgment only for “intermediate” levels

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Cite this paper

@inproceedings{Fox2010JudicialRA, title={Judicial Review and Democratic Failure ∗}, author={J. Tylor Fox and Matthew Stephenson and Gabriella Blum and Rachel Brewster and Glenn Cohen and Barry Friedman and Jim Greiner and Leslie Johns and Dimitri Landa and Adriaan M. Lanni}, year={2010} }