The legitimacy of judicial review: The limits of dialogue between courts and legislatures

Abstract

According to the theory of ‘‘institutional dialogue,’’ courts and legislatures participate in a dialogue aimed at achieving the proper balance between constitutional principles and public policies and the existence of this dialogue constitutes a good reason for not conceiving of judicial review as democratically illegitimate. This essay sets out to demonstrate that there are important limits to the capacity of insitutional dialogue to legitimize the institution of judicial review. To that end, it situates the theory of institutional dialogue within the debate over the legitimacy of judicial review of legislation within democracy and introduces a distinction between two conceptions of dialogue—dialogue as deliberation and dialogue as conversation—and examines the limits of each theory. The author does not contend that there can be no dialogue between courts and legislatures but, rather, that the kind of dialogue that would be needed to confer legitimacy on the institution and practice of judicial review does not—and cannot—exist. Consequently, the normative character of institutional dialogue theory, as conceived thus far, is ultimately rhetorical. The theory of ‘‘institutional dialogue,’’ as I shall call it, may be seen as a Canadian contribution to the debate over the democratic legitimacy of judicial review. 1 According to this theory, the courts and the legislatures participate in a dialogue regarding the determination of the proper balance between constitutional principles and public policies, and, this being the case, there is good reason to think of judicial review as democratically legitimate. It is an ongoing dialogue because the judiciary does not necessarily have the last word with respect to constitutional matters and policies; the legislatures would almost always have the power to reverse, modify, or void a judicial decision nullifying legislation and, therefore, to achieve their social or economic policy ends. Consequently the countermajoritarian objection to