Judicial review and democratic resilience: Afterword to the Foreword by Doreen Lustig and J. H. H. Weiler

Abstract

This commentary focuses on the relationship between judicial review and democratic resilience, a key challenge within the contemporary “third wave” in Lustig and Weiler’s dialectic dynamic of judicial review. Making use of examples from the Latin American region, I suggest that variations in levels of judicial independence, accountability, and responsibility can help us distinguish between the legitimate use of “voice” and different types of “exit” from the practice of judicial review or even constitutional democracy. The commentary also advances some more general thoughts as to the precise role that courts and judicial review can play in buttressing constitutional democracy in an age of populism and stringent sovereignty claims.