On Judicial Review: Laurence H. Tribe, Jeremy Waldron, and Mark Tushnet Debate
Waldron, Jeremy
MY FIRST REACTION upon reading Mark Tushnet's radical and refreshing proposal was to applaud. It is high time partisans of democracy begin thinking in these terms: Tushnet's has been a lonely...
...pragmatic issues about law enforcement...
...I recently read through the House of Commons Second Reading debate on the liberalization of abortion law in the United Kingdom in 1966...
...the importance of freedom, choice, and privacy...
...They have developed standard responses when someone criticizes this practice, with which they identify so strongly...
...Judges know that their role is problematic...
...It is high time partisans of democracy begin thinking in these terms: Tushnet's has been a lonely voice in American progressive circles urging skepticism about judicial review even when it delivers results that he agrees with...
...The British legalized abortion, prostitution, and homosexuality and abolished capital punishment, all by legislation, all without the assistance of the judiciary—or sometimes over its expressed opposition—in the 84 n DISSENT / Summer 2005 1960s...
...Tushnet's EJRA talks about ending judicial review—but "review" can mean different things...
...Now, the British courts can't declare the anti-terrorist legislation unconstitutional: they can't remove it from the statute book or decline to apply it to the case in front of them...
...For all their vices, though, legislators tend to go directly to the heart of the matter in their debates...
...So I wonder whether Tushnet intends his EJRA proposal to preclude weak as well as strong judicial review...
...JEREMY WALDRON, who is University Professor in the School of Law at Columbia University, is the author of Law and Disagreement (Oxford University Press, 1999) and The Dignity of Legislation (Cambridge University Press, 2000...
...One thing that's often said is that courts DISSENT / Summer 2005 n 83 ARGUMENTS give reasons for their decisions, whereas legislatures do not, and this is a sign that courts, unlike legislatures, take seriously the issues of rights that they address...
...courts can help them see this, particularly if courts are not distracted by the issues I mentioned earlier about the legitimacy of their own decision making...
...Tushnet is right: the people deserve a forum for working through their disagreements about rights that is more inclusive than majority voting among nine unelected justices...
...That is what needs to be debated when society is deciding about abortion rights, and those are the issues that are given most time in the legislative debates and least time in judicial reasoning...
...It's about legal history, or precedent, or jurisdiction, or theories of interpretation, or other legalisms...
...I started thinking of all the things that partisans of judicial review were likely to say in response to Tushnet...
...If it has become less divisive there, it is precisely because of the way in which the decision was made...
...I know this is a quibble from the point of view of an argument put forward mainly as a provocation...
...My first reaction was applause...
...It may not always be easy for legislators to see what issues of rights are embedded in the legislative proposals brought before them...
...If my first reaction was applause, my second reaction was defensive...
...Supreme Court was mostly concerned with interpretation and doctrine, the British legislative debate focused on the issue of abortion itself—the status of the fetus...
...THIS MAY SEEM all very utopian...
...They can issue a Declaration of Incompatibility, and that can be used to authorize fast-track legislative procedures to rectify the problem...
...With courts, they say, we are never just faced with a bare decision about rights, coercively imposed...
...The rest is mostly taken up with showing the diversity of opinions on the matter...
...Notice, though, that I am talking about a real legislature and a real debate about an issue that was in its time no less divisive there than it is here...
...We should compare courts as they are to legislatures as they realistically might be if they grew to become genuine deliberative forums, taking final responsibility for decisions on these issues, with those citizens who currently invest their political energies in litigation investing them instead in the democratic process...
...The result may be appealing, but the "reasoning" is threadbare...
...DISSENT / Summer 2005 n 85...
...He wants us to think like democrats about judicial power and stop supporting it simply because it sometimes happens to work for progressive causes...
...It leaves the ultimate decision to the representatives of the people in Parliament, but it uses courts to bring issues of right to the attention of the community...
...Legislators may reason roughly by the standards of the Court's polished prose, and there are hundreds of them, and they have constituents (ordinary people) to answer to, so it's harder for law professors to keep track...
...But that's not the difference I want to emphasize...
...They may concoct analogies between what they are doing in one case and the contortions they went through when they dealt with similar or not-so-similar matters in the past...
...Of course, real legislatures also sometimes act in panicstricken or sectarian ways...
...My third response is to quibble about details...
...we have judicial reasoning, which helps bring constitutional rights into focus for us, and it would be a pity to give that up...
...American law professors are deeply invested in judicial review—many of them served as clerks on the Supreme Court, and some of them dream (most of them in vain) of becoming justices themselves...
...By contrast, legislators do give reasons for their votes: the reasons are given in debate and they are published in the Congressional Record...
...The key difference is that whereas the reasoning of the U.S...
...the moral conflicts all this involves...
...I'm not convinced...
...In the Supreme Court's fifty-page opinion in Roe v. Wade (1973), for example, there are just two paragraphs dealing with the importance of the main issue at stake—the rights-status of the fetus...
...But as Tushnet has emphasized, we mustn't just compare courts as they are to American legislatures as they operate in the shadow of courts...
...If you read what passes for "reasoning" in Supreme Court decisions, most of it is not about issues of rights at all...
...How many times have you ever heard pro-life advocates pay tribute to the respectfulness with which their positions were listened to by the Supreme Court in Roe v. Wade...
...Thus they cling to the texts that authorize their interventions and laboriously debate their interpretation with special reference to theories like originalism and constructivism to show that they are legally entitled to do what they are doing...
...the predicament of pregnancy...
...Their highest court recently found provisions of the Anti-Terrorism, Crime and Security Act incompatible with the rights laid down in the European Convention and the Human Rights Act...
...and so on...
...The pro-choice faction eventually prevailed...
...And all the time, the real issues at stake get pushed to the margins of their reasoning...
...Remarkably, the pro-life Members of Parliament (when they saw which way the vote was going) paid tribute to the respectfulness with which their views had been heard...
...British courts can review parliamentary legislation...
...But if we are ever to be serious about taking back the Constitution from the courts, would not this form of weak review offer a constitutional democracy perhaps the best of both worlds...
...health risks of back-alley abortions...
...But their review does have an effect...
...This is what we call weak judicial review...
...The debate engaged pro-life Labour people and pro-choice Labour people, pro-life Conservatives and pro-choice Conservatives, talking through all questions that need to be addressed when abortion is being considered and debating them passionately but also thoroughly and honorably...
...my second ARGUMENTS reaction was defensive...
Vol. 52 • July 2005 • No. 3
