Wednesday, March 26, 2008

More on Judicial Restraint in a System of Judicial Review


I fear that my jest at the beginning of my previous post on judicial restraint caused Eric Posner to miss the real point of my discussion of judicial review. (Perhaps he didn't read anything after the jump.)

Far be it from me to tell Eric that judicial restraint is impossible. We have plenty of it in the U.S., for example, in cases involving economic liberty and federalism. Rather, it's that in an existing system of judicial review generalized calls for judicial restraint are normatively puzzling without a substantive theory of the Constitution to back them up. As substantive views of the Constitution have changed over the years, it is not surprising that the areas in which courts exercise judicial restraint also change. This is an argument about the normative relationship between concepts, not a claimed iron law of causality or a determinacy paradox.

Is Eric saying that even if he thinks that the Constitution forbids X, that he doesn't want the judiciary to strike down X? Or is he saying that he thinks X is not unconstitutional? Perhaps this is what he means by his comment that "A strong case has been made that American Supreme Court justices have gone too far in evaluating and striking down laws on the basis of their constitutionality." Is he saying that the Justices have been striking down too many unconstitutional laws, or is he saying that they have been striking down laws they think are unconstitutional but that Eric thinks are really not unconstitutional? If the latter, then he is not making a generalized argument for judicial restraint; he is making an implicit claim about the substantive rights the Constitution protects.) Or perhaps is he making one of the other types of arguments for judicial restraint I mentioned in my previous post. If so, which one?

I'm also puzzled by his offhand claim "that most advanced liberal democracies have much less of this behavior." What behavior, precisely, is that? Striking down unconstitutional laws and executive actions? Or striking down laws and executive actions that aren't really unconstitutional?

Eric's assumption strikes me as unproven. We must make sure that we are not comparing apples and oranges. In those systems that have judicial review (as opposed to no judicial review at all) the U.S. is not particularly an outlier in the activity of its judiciary. (He might compare the U.S. to Germany, for example, or to countries in Eastern Europe, or South Africa.) And there are further complications. What of my point about the difference between judicial review of executive action and judicial review of legislative action? What about the further distinction between the case for judicial review in a federated republic like the U.S. as opposed to a unitary republic? What about systems that have abstract review (like France) as opposed to those like the U.S. that have case or controversy requirements? And what about those that have specialized central constitutional courts as opposed to those that hear constitutional claims in courts of general jurisdiction? We can't make offhand claims about the U.S. having "more" judicial review (or more "unnecessary or bad" judicial review) than other liberal Western democracies until we start thinking more carefully about the effects of constitutional design on judicial practice.

Inquiring minds want to know, Eric. What is your theory of judicial restraint in a system of judicial review?


Does Eric Posner identify those " ... most advanced liberal democracies [that] have much less of this behavior." so that we can make comparisons?

What about "Legislative Restraint" or "Executive Restraint" and "Legislative Review" or "Executive Review"? (Of course neither these terms nor "Judicial Restraint" and "Judicial Review" are mentioned in the Constitution.)

Perhaps the checks are still in the mail that will assist us in balancing between these branches. Legislative and Executive accountability take 2, 4 or 6 year elections whereas old unelected Justices are there for life, even with so-so behavior.

"Is he saying that the Justices have been striking down too many unconstitutional laws, or is he saying that they have been striking down laws they think are unconstitutional but that Eric thinks are really not unconstitutional?"

He might also think that the Constitution itself is just too big--that there are too many unconstitutional laws.

Judicial restraint does not necessarily mean failing to strike down a law that a judge thinks is unconstitutional; rather, it might be a judge admitting that he or she is unsure of the correct outcome and, in such a case, the court will defer to the views of the legislature and executive (at least for a while).

As far as I know, courts have never said, "We don't know," but it might make for a better version of judicial restraint than simply declaring a law "Constitutional." A judicial declaration of uncertainty would (1) leave the door open to a later correction, (2) avoid blessing a questionable law with the imprimatur of the court, and (3) place greater responsibility on elected officials and the public.

However, as JB implicitly notes, "judicial restraint" does not make much sense where a court must determine the allocation of law-making or law-enforcing authority among institutions (e.g., state vs. federal governments).

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