Compared to What? Judicial Review and Other Veto Points in Contemporary Democratic Theory
David Watkins and Scott Lemieux
Many democratic and jurisprudential theorists have too often uncritically accepted Alexander Bickel’s notion of “the countermajoritarian difficulty” when considering the relationship between judicial review and democracy; this is the case for arguments both for and against judicial review. This framework is both theoretically and empirically unsustainable. Democracy is not
Proceeding on the assumption that democracy’s primary normative value is found in its opposition to domination by both state and private actors, we make a preliminary effort to delineate what qualities a democratic veto point might have, identifying five criteria, and evaluate judicial review using these criteria. We conclude that judicial review’s performance against these criteria is decidedly mixed, but in the final balance is likely to be a modest net positive for democracy, particularly when compared to other veto points commonly found in contemporary democratic political systems.
Compared to What? Judicial Review and Other Veto Points in Contemporary Democratic Theory, by David Watkins and Scott Lemieux, appears in Perspectives on Politics Volume 13 / Issue 2 / June 2015, pp 312–326.