US law profs Orin Kerr and Ilya Somin have just (I think) completed a fairly robust debate on the proper judicial role where "the People" have happily opted for voting in Big Government. (With a Bush in the White House and Democrats controlling Congress, this hardly qualifies as a hypothetical scenario.) The dilemma they explored is a particular concern for conservative libertarian jurists - specifically, whether (as conservative supporters of judicical modesty) they should maintain that judges should refrain from substituting their own policy preferences for those which have been democratically expressed (Orin's view), or whether (as libertarians) they should insist that judges always apply a model of legality privileging individual freedom and limited state interference (Ilya's view). These are simplifications of their positions (necessitated by a short blog post), and you can read the debate for yourself here. (Caveat: my link is to Orin's recent post at the time I made this post. By the time you read it, Ilya may have responded.)
For what it's worth, I find Ilya's position more appealing. A meaningful theory of judicial review ought to apply irrespective of the party who calls the shots in the legislature (and, in the US, in the executive). The point is that there is a normative function served by judicial review. And, by the way, this is not a purely libertarian argument. Even if Ilya is incorrect about that function (and, by the way, I do not think he is - judicial review exists in my opinion to constrain legislative and executive power taken at the expense of individual liberties), it still matters not whether the law under review was the product of a democratically expressed popular will. No matter how you see the function of judicial review, a plausible account for it will apply irrespective of the particular partisan source of the law under review.
This is not to say that judges should not be modest in their approach to judicial review in the sense that they ought not to be substituting their own policy preferences for those of the legislature where the legislative policy preference falls short of impeding constitutional rights. Nor, obviously, should they be rewriting constitutions to suit their own policy preferences.
But isn't the question of whether or not legislation impedes a constitutional right, more often than not, an issue of policy? I must confess I have always found the line between objective determination of rights infringement (good) and subjective policy-driven preferences (bad) more than a little difficult to discern. It strikes me that this determination almost invariably cycles back to outcomes -- what is deemed an inappropriate use of judicial review almost always tracks the policy preferences of the person making the critique.
Posted by: Eric Adams | January 29, 2008 at 10:56 AM
Not if we agree on some fixed goalposts at the outset. I'm guessing that the response to that is that we set those goalposts based on policy preferences. If so, I think we are (like Ilya and Orin) ships passing in the night, since I see the law as furnishing an overarching framework of objectively discernible rights. Of course, I may not like how they enforce those rights or the weight they give to the right (no right being absolute), and that's where I see conflicting policy preferences coming into play.
For what it's worth, Binnie J.'s dissent in Chaoulli strikes me as expressing the concern that the court was moving from the (appropriate) world of fixed goalposts into the (inappropriate) world of conflicting policy preferences. ("How many MRI's does the Constitution require?") This presupposes a distinction between the two.
Eric's comment probably deserves a more detailed and considered reply than can be offered (1) in a blog comment (2) at 10:20 pm. I do think that the distinction between "judicial policy" (good) and "legislative-policy-made-by-judges" (bad) is an elusive one. (I am reminded of George W. Bush's comments on the Dred Scot decision when discussing his ideal appointment to the SCUS). But if Eric is right and I'm wrong, then why have judicial review? Why not just give it all over to, say, a second layer of legislators who can give the legislation a once-over with a careful eye to the Constitution, apply their own policy preferences and that's that. In other words, judges must do something different than apply police preferences, or else why bother having them?
Posted by: Russ Brown | January 29, 2008 at 10:22 PM
Sorry, meant applying "policy" preferences, not applying "police" preferences.
Although the SCC has been pretty good at that too, at least since Lamer CJ left the scene.
Posted by: Russ Brown | January 29, 2008 at 10:24 PM
The legitimacy of using the judge's "policy preferences" to determine constitutional cases depends on the level of abstraction of the "preferences." If a judge decides a free speech case because of her opinion of the truth-value of the statement, or an election-law case on the basis of how it affects his preferred party or a federalism case on the basis of whether they think the law will be effective, that's a problem. But judges must and should have varying degrees of preference for majoritarianism versus libertarianism, political equality versus political liberty and centralism versus decentralism. Text and precedent just can't constrain them enough to decide any actual cases.
Posted by: Gareth Morley | January 31, 2008 at 05:45 PM
I don't disagree with anything you say. Those more highly abstract preferences (majoritarianism versus libertarianism etc.) obviously serve as fixed goalposts (barring conversions on Damascene roads). Your first examples describe what I take to be improper.
Posted by: Russ Brown | January 31, 2008 at 08:50 PM