Technocracy and Distrust: Revisiting the Rationale for Judicial Review

Abstract

Two hundred years after Marbury v. Madison, judicial review has spread to all parts of the world. Yet it remains an eminently contentious practice. The scholarly debate has spawned a vast literature both pro and contra judicial review. This literature, however, has largely failed to address the empirical dimension of the issue. The present paper seeks to address this shortcoming and to recast the discussion in more empirical terms by bringing insights from delegation theory, political economy and empirical research on judicial behaviour to bear on our understanding of judicial review. It contrasts two distinct approaches to the justification of judicial review of legislation taken to be implicit in the normative debate: (1) The Principal-Agent Model, which essentially views judicial review as a means to enforce the choices of the constitutional framers over recalcitrant legislative majorities. And (2) the Trustee, or Technocratic, Model, which casts constitutional judges as trustees of the political system: their task is to ensure that the legislative process produces the “best” policy outcomes. While examining how the two models relate to traditional understandings of the role of judges, it tries to assess the extent to which the organizational setting of courts, the judges’ incentive structure and actual impact on policy outcomes really fit the prescriptions of the corresponding model. It demonstrates that in light of the available evidence the Trustee, or Technocratic, Model comes closer to describing how judicial review works in reality and thus provides a better – albeit by no means problem-free – rationale for the institution. Although more empirical research is needed before judgment can be passed on the real merits of granting the power of judicial review to non-elected judges, this finding should prompt us both to rethink how the practice relates to our democratic conceptions and to take the issue of institutional design more seriously.