Problematic Conceptions of Democracy, Selectively Applied

It’s hard to respond to Paul’s question-begging-all-the-way-down response here, and it leaves most of my prior arguments untouched. But especially since he seems to have stopped implying that there was something uniquely bad about the Iowa court’s ruling or that it was in some way comparable to the more singular lawlessness of Bush v. Gore (which is good, given the utter indefensibly of both claims) — meaning that he seems to be resting on the notion that judicial review in any form is straightforwardly “undemocratic” — we can use this to explore some of the issues djw and I have gone into at greater length elsewhere.

So why might the Iowa Supreme Court’s decision be “undemocratic”? It’s still unclear, but we can make some inferences. To Paul, “democracy” seems to mean little more than “decisions made by directly elected officials.” But the first problem here is that the Iowa Supreme Court is electorally accountable, subject to election for new terms. (In Paul’s answer — that they rarely lose elections — won’t wash, because given the extremely high re-election rates of incumbents in legislative elections by this standard legislators also lack democratic legitimacy.)

So perhaps the answer is just that the Iowa judges are less electorally accountable than legislators, although they are accountable. But this is an exceptionally strange standard to apply in the context of American democracy. I may have missed Paul’s previous columns expressing outrage that the Federal Reserve — less democratically accountable by any standard — is allowed to set interest rates, an immensely important power. And in addition, it’s utterly banal for countless important policy choices to be made by executive branch officials who, while theoretically accountable to elected officials in practice have very wide discretion to make policy, and are less directly accountable to the electorate than the Iowa Supreme Court. The fact is, nothing about American democracy is structured on the assumption that policies are legitimate only if they are announced by directly elected officials. Perhaps Paul thinks that the Federal Reserve and any delegation to the executive branch are also completely illegitimate, but again this argument isn’t very useful since they’re not going anywhere.

So what are the other reasons why judicial review might be “undemocratic”? Its decisions are final? Again, not in this case — the court’s judgment can be overturned with two simple majority votes and a simple majority referendum. (And, given that judges are either elected or appointed by political officials, and that courts depend on other branches for their jurisdiction, t enforce their judgments, etc., judicial review is never actually “final” even in contexts where there isn’t an override.) Is the problem that it’s “countermajoritarian?” Again, leaving aside that it’s a weird way of describing a decision that has earned the immediate support of the majority leader of both legislative houses, given that American legislatures are “majoritarian” in neither theory nor practice it’s hard to see how getting rid of judicial review would produce significantly more “majoritarian” outcomes, or why these other non-maoritarian outcomes should be venerated as democratically unassailable.. Some commenters have made the more sophisticated claim that judicial review, by permitting difficult choices to passed off to other to other actors and hence permit legislators to nullify accountability, which actually is a serious argument. But, again, the issue here isn’t so much with judicial review per se as with separation of powers more broadly; systems that diffuse power inherently diffuse accountability as well. How you balance these is an interesting question, but since Iowa isn’t about to be organized as a Westminster parliamentary government in this context it’s just a parlor game.

So, essentially, the arguments that would make judicial review illegitimate would also cause us to see the American political process in general as illegitimate, which renders them not very valuable — evaluations of the legitimacy of judicial review (which is certainly not necessary to democracy, any more than bicameralism is) are only meaningful in context. And this is all without getting to the perhaps more serious problem of why we should assume that democracy should have no more content than “policies announced by elected officials (except judges, who even if elected don’t count as elected).” Very, very, few people would see democracy as nothing more than legislative majoritarianism, for the obvious reason that this isn’t very attractive. Almost everybody’s conception of democracy (including, I assume, Paul’s) entails some protection of individual rights from majorities, but once we assume this claims that judicial review is presumptively undemocratic become almost impossible to sustain, at least in this form. What we should consider the normative ends of democracy is beyond the scope of a single blog post, but certainly it seems to me that if you arrive at a place where arbitrary exclusions of fundamental benefits require less justification than removing such exclusions you’re doing something wrong.