The Supreme Court in a Common Law Tradition: The Democratic Legitimacy of Judicial Review in Light of American Legal Realism

Abstract

The democratic legitimacy of judicial review, especially the proper role of the Supreme Court in a democratic system, is a constantly debated issue in American constitutional law. While many theories or arguments focus their attention on the so-called countermajoritarian difficulty of judicial review, the viewpoint of American Legal Realism deserves special attention, since it conceives of democracy not merely as majority rule, but rather as government based on what the people really want, which then must be investigated not only in legislation, but in judicial process. Therefore, it strongly argues for the connection between judicial decisions and concrete social experience and in consequence focuses its attention particularly on the Supreme Court's investigation of empirical social science, which it believes will improve that court's legal reasoning on democratic grounds and in this way reinforce the democratic legitimacy of the court's decision. Thus conceived, Legal Realism regards common law as a specific way to realize democracy, and accordingly provides a framework for the proper role of the Supreme Court. In this view, Legal Realism plays an important role in the American constitutional history not only because it methodologically stands against Formalism, but because it provides a different model for explaining and supporting the democratic legitimacy of judicial review of the US Supreme Court within its common law background.