Judicial Review and Judicial Politics

Dahlia Lithwick has a very good article on the implications of the political nature of judicial review, as revealed by the straight party-line voting on the constitutionality of the ACA. Certainly, if you believe that judicial review can be justified if it’s politically neutral, then Waldron is right.

I don’t believe that judicial review has to be politically neutral* to have some benefits for liberal democracy. The short version of the argument is that 1)for better or worse judicial review is a relatively marginal phenomenon, and 2)it’s as or more democratically defensible that the other veto points whose legitimacy Waldron takes for granted. Judicial review isn’t a very reliable protector of the rights of underrepresented minorities, but it certainly has a better record than, say, the filibuster.

*For those without institutional subscriptions who are masochistic enough to want the long version, [email protected].