Why legislatures owe deference to the courts

Abstract

In his intriguing book, Dimitrios Kyritsis establishes the justifiability of judicial review. Under his view, the institutional duties of the Court are not parasitic on epistemic or any instrumental concerns. One of the primary institutional duties includes the duty of judicial ‘robust deference’ to the legislature. Robust deference requires courts to give effect to legislative decisions that are sub-optimal in terms of content. My commentary establishes the significance of legislative robust deference to the Courts. Such a deference on the part of the legislature is required when basic moral rights are at stake. One of the implications is that within a certain sphere, a liberal polity ought to defer to courts even when the courts are inferior in their epistemic competence. It is the unique role of judges as embodying the ideal of inviolability and invulnerability of individuals to majoritarian sentiments that justifies legislative deference to judicial decisions.