Judicial Review

Abstract

This chapter assesses whether judicial review of legislation is compatible with political equality. Judicial review typically involves the right of some group of judges—often with very distant, if any, electoral authorization—to overturn acts of elected legislative authorities. In empowering the unelected over the elected, many lawyers, philosophers, and ordinary citizens believe that such review is undemocratic. The chapter argues that a well-designed system of judicial review could be compatible with political equality, despite the institutional inequalities it involves, if such review reliably promotes the consideration of citizens' judgments that would otherwise be neglected by the legislative process. Notably, this is not an argument that judicial review is justified because it protects individual rights from democratic abuse. It is an argument that judicial review is justified because it contributes to a regime that as a whole better instantiates political equality than would a regime without such review. However, the systems of judicial review in place in the United States and elsewhere likely require reform if they are to meet this standard.