The Easy Core Case for Judicial Review

Abstract

This paper defends judicial review on the grounds that judicial review is necessary for protecting right to a Judicial review is praised by its advocates on the basis of instrumentalist reasons, i.e., because of its desirable contingent consequences such as protecting rights, promoting democracy, maintaining stability, etc. We argue that instrumentalist reasons for judicial review are bound to fail and that an adequate defense of judicial review requires justifying judicial review on non-instrumentalist grounds. A non-instrumentalist justification grounds judicial review in essential attributes of the judicial process. In searching for a non-instrumental justification we establish that judicial review is designed to protect the right to a hearing. The right to a hearing consists of three components: the opportunity to voice a grievance, the opportunity to be provided with a justification for a decision that impinges (or may have impinged) on one's rights and, last, the duty to reconsider the initial decision giving rise to the grievance. The right to a hearing is valued independently of the merit of the decisions generated by the judicial process. We also argue that the recent proposals to reinforce popular or democratic participation in shaping the Constitution are wrong because they are detrimental to the right to a hearing.