The Nature of Judicial Review

Abstract

In The Nature of the Judicial Process,' Cardozo is concerned with the sources of common law: how do judges decide cases; what counts as justification for decisions that rest uneasily, if at all, on precedent and that are not required by a written text? Although evidently struck by the power common-law judges exercise in such situations, Cardozo was not moved to question the legitimacy of that power. Instead, he considered it sufficient to explain and classify the various methods courts use in reaching decisions. This predominantly descriptive approach assumes, among other things, that judges ought to make the common-law, that is, ought to fashion principles and policies into standards of decision. Cardozo's assumption remains the conventional understanding: while we may disagree strongly with particular decisions, we rarely question the authority of common-law courts, even in pivotal cases. Judicial review is another matter. Almost every important case that displeases some sizeable group leads to questions about the legitimacy of the famous doctrine proclaimed in Marbury v. Madison.2 To speak only of the recent past, it was some sixteen years after publication of The Nature of the Judicial Process that judicial review of New Deal legislation brought the executive and the Supreme Court into direct confrontation.3 More recently, the segregation,4 reapportionment,' and abortion cases have provoked very serious attacks on the Court. In addition, the attempt to find a justification for judicial review is again engaging the attention of