The republican core of the case for judicial review

Abstract

This article makes the case for judicial review based on the idea of freedom as non-domination. It is a democratic case for the institution, rooted in Philip Pettit’s republican account of democracy as “equally shared popular control.” It is also a legitimacy-based and non-epistemic case—it does not rely on Rawlsian/Dworkinian ideas around the special wisdom or the special virtue of judges. The article thus accounts for the main concerns of political constitutionalists. In fact, building as it does on Richard Bellamy’s insights in particular, it is itself a political constitutionalist case for judicial review. It diverges from Bellamy, however, in its conclusions about judicial power. This divergence emerges from a particular understanding of how common goods might emerge over time in a democratic society. Following Pettit, the article emphasizes a long-term perspective on that question, and suggests fluid, iterative processes toward that end—processes that account for and embrace disagreement among citizens. The article holds that non-electoral contestatory institutions play a necessary role in such processes. And it holds that there are good reasons why judicial review—and, in principle, judicial supremacy—might be understood as one such institution. These reasons are good in part because they are non-epistemic: they do not conflict with the fact of reasonable disagreement on rights questions.