Democracy, Distrust, and Judicial Umpiring in the G-20 Nations

Abstract

article examines John Hart Ely's theory of judicial review set forth forty-one years ago in: John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980). In particular, it examines Ely's claim that it is normatively desirable for courts to police the political processes of change to keep them open to political outsiders and that this is in fact one thing Supreme Courts, or Constitutional Courts, do. I show that the U.S. Supreme Court has continued to play this umpiring role since 1980, although often in ways John Hart Ely may not have approved of. I then comparatively examine the judicial review systems of: 1) the United Kingdom; 2) Germany; 3) Japan; 4) South Africa; 5) Brazil; 6) Canada; and 7) Australia, and I show that in those countries Supreme Courts or Constitutional Courts ubiquitously play the role John Hart Ely describes. This helps to prove that umpiring of the political process does not raise political question but instead is a core judicial function. This essay is forthcoming in Constitutional Commentary.