Judicial Restraint (and Judicial Supremacy)

Abstract

Abstract Debates in constitutional democracies over “restraint” (versus “activism”) in judicial constitutional review have typically turned on a bedrock political value of democracy. The debates may also, however, be understood in the light of a different bedrock value, that of political legitimacy. A focus on legitimacy (as informed by the constitutional-democratic thought of John Rawls) prompts a disbundling of three types of restraint in judicial review—here distinguished as “reserved,” “tolerant,” and “weak-form”—which a focus on democracy tends to run together. A result is to complicate the choices for institutional design, while also clarifying the stakes. A Rawlsian supreme court, this chapter suggests, would not be overly reserved from readiness to speak in the constitution’s name; its practice would be tolerant of normal and inevitable political disagreement over constitutional meanings; it would still, however, retain some element of strong-form final authority—all these conclusions springing from the idea of constitutional law as a procedural platform of justification for political power, among free and equal citizens in conditions of reasonable pluralism, in answer to the problem of political liberalism.