The Age of Marbury: Judicial Review in a Democracy of Rights

Abstract

This is the third and last article in a series I have written exploring the new terrain of the conflict between and judicial review. I develop a theory of judicial review that is critical of contemporary judicial review and responsive to our democratic values and political circumstances without relying on the countermajoritarian difficulty. I begin by showing that the kind of judicial review endorsed in Marbury v. Madison is quite remote from the institution of judicial review as it exists today. While Marshall's reasoning remains persuasive for many, historical evidence shows that his argument was based on a completely different understanding of the law/politics distinction than the one that prevails today. In building my own theory of judicial review, I begin by contrasting Alexander Bickel's theory with Robert Dahl's famous study of the Supreme Court's influence to show how both works were dependent on the political context of their time. I then provide a political context for my theory by highlighting the importance of a closely divided government and the politicization of constitutional issues and the federal judicial appointment process. I justify by appealing to the concept of a democracy of that is led naturally to consistently protect constitutional values through legislation. Finally, I apply this account of to argue that the judiciary should defer to legislation that protects constitutional rights. I also argue that the creation of a of rights and the politicization of constitutional issues has led to a point where vigorous judicial review can no longer be justified. In the last part, I contrast my theory with two recent defenses of judicial review, one offered by Daniel Farber and Suzanna Sherry and the other by Christopher Eisgruber.