affiliated to the International Association of Constitutional Law
Richard Bellamy is right about many things. One of them is that judicial review cannot be defended on the basis of what he calls its “epistemic properties:” on its supposed capacity to bring about better outcomes in disputes about rights. This is because of the fact of reasonable disagreement about rights combined with the fact that the reasons for that disagreement are no less applicable to judges than they are to ordinary citizens. Thus the premise of epistemic cases for judicial review, like those of Rawls and Dworkin, offends democratic principles.
In an article forthcoming in I-Con, I argue that despite the entirely persuasive arguments Bellamy and Jeremy Waldron make about that fact of disagreement on rights, they draw the wrong institutional conclusion. I claim that there is a case to be made for judicial review – a democratic case – including in principle for the judicial supremacy against which Bellamy and Waldron rail.
I build my case on Philip Pettit’s republican theory – the same foundation that Bellamy builds his conflicting one. It is a non-epistemic case: it does not rely on claims about the special wisdom or the special virtue of judges. I suggest that it corresponds with and complements other such cases for the institution presented in recent years, including Mattias Kumm’s “Socratic contestation” case, Alon Harel’s “right to a hearing” case, and Rosalind Dixon’s democratic responsiveness case. In fact I argue in the article that each of the three can be understood as basically republican in its orientation. I also suggest that my argument is in line with Jeff King’s ideas on contextual institutional approaches to judicial restraint, and with the interinstitutional comity/collaboration ideas elaborated by Aileen Kavanagh and Eoin Carolan, among others – although I leave exploration of that suggestion for another day.
In this post, I give an overview of my argument in two parts. The first considers two relevant aspects of Pettit’s republican theory of democracy. The second applies the analysis of those aspects to the institution of judicial review.
I. Pettit’s account of democracy – key concepts
In a short piece like this, I have to assume familiarity with Pettit’s republican account of freedom as non-domination. I simply mention his “eyeball test” – that a slave and his master cannot look one another in the eye because each knows that one enjoys arbitrary power over the other.
I turn instead to the republican account of democracy as “equally shared popular control of government,” and in particular to what I think is the most important element of that idea: that in order for citizens to enjoy such control, it must be that government is institutionally bound to pursue common rather than factional goods in everything it does; that it is effectively forced towards policy outcomes that “each citizen is disposed to find acceptable.”
Although this difficult notion gets more considered attention in Pettit’s On the People’s Terms (2012), it has always been bubbling away in his work, and it is the main reason why Bellamy dismissed Pettit as a legal constitutionalist when, in Political Constitutionalism (2007), he considered Pettit’s general endorsement of judicial review. Bellamy’s thought was that this “equally acceptable policy direction” idea suggests a rational consensus-type approach to politics; that, as per Rawls and Dworkin, Pettit supposes that if we could all somehow just think rationally, we’d agree on questions of rights and justice.
I think Bellamy is mistaken in this interpretation of Pettit’s ideas. The clarification as to why forms the basis of the democratic case for judicial review. That clarification requires an understanding of two elements of this aspect of Pettit’s thinking. The first is his “tough luck test,” which is the analogue in the legitimacy domain of the “eyeball test” in the justice domain. The second is the idea of a politics based on what Pettit calls “commonly avowable norms,” and the difference between that kind of politics and one based on Rawls’s idea of public reason.
The tough luck test helps explain how a given law can be “equally acceptable” to citizens to the extent required by non-domination while also being objectionable, as it almost inevitably will be, to some or many such citizens. In short, it must be that a defeated citizen can sit back and think: “OK, I was defeated this time round, but at least the values that inform my preference on this question were considered in the process.” It must be, in other words, that they can attribute their defeat to something like tough luck as distinct from having reason to see it as a hostile or an alien imposition, as a German Jew would have seen the anti-Semitic laws of the 1930s.
The commonly avowable norms idea suggests designing institutions with an eye on encouraging citizens towards presenting justifications for their policy preferences that they might expect would make those preferences more congenial to citizens with whom they disagree, rather than just doggedly insisting on them in public exchanges. The thought is that once that develops in the public culture it quickly becomes almost a requirement in order to be taken seriously in public debate. It also prompts the emergence of norms that become points of reference in such debate insofar as they come to be recognized by all as relevant considerations such that, in order to pass muster, policy preferences must at least in some sense correspond with them. These norms are thus commonly avowable, and they gradually come to play this “directing” role in public affairs. Over the long haul, they help generate outcomes that are more likely to pass the tough luck test, thus similarly facilitating an equally acceptable policy direction in that republican sense.
II. The republican case for judicial review
Perhaps the key point in the present context is that neither of these ideas suggests any consensus, rational or otherwise, on rights questions, nor does either require or imply agreement on policy outcomes. The republican understanding of democracy is thus fundamentally different from Rawlsian and Dworkinian approaches, and in a way that has fundamentally important implications for institutional questions.
One institutional implication of the tough luck test is that there must be constraints imposed on lawmakers designed to counteract the intrusion of an alien will in lawmaking processes. I take this to suggest something like the following: that in respect of policy choices around, say, the wearing of religious insignia in public spaces, that if the ultimate decision-maker has, say, twenty policy options, that each one of the twenty at least in some way corresponds to some plausible conception of the public interest. It cannot be that any one of the twenty represents what for some citizens might credibly be understood as a hostile imposition. Thus the tough luck test is compatible with a range of outcomes in any given policy domain, and potentially a very broad range. It suggests institutional constraints imposed on the decision-maker that are not at all concerned with generating the right answer to a given rights/policy conundrum, or even with producing a good answer. They are concerned only with helping to guard against egregiously bad answers.
Similarly with respect to the second element. Unlike under public reason-based deliberative democracy, there is no particular need for virtue on the part of citizens, nor for ultimate agreement among deliberators. In fact it is disagreement that drives the search for commonly avowable norms in the first place, and it is the desire to be taken seriously, rather than virtue, that prompts the inclination towards that republican mode of politics. Not only that, but the norms that come to be recognized as points of reference are by no means understood as fixed in the manner of pre-political natural rights. They too will evolve over time, in tandem with the political dispositions of citizens.
The point ultimately is that if judicial review is an institution that might play a role in facilitating a) outcomes that do better by the tough luck test and b) that republican rather than the dogged winner-and-loser form of politics, then its value lies in its legitimating and democratic properties and not at all in any supposed epistemic properties. Thus this republican defense of judicial review sidesteps the Bellamy/Waldron objection. It represents a democratic institution in itself, rather than a non-democratic corrective to what Bellamy notably refers to as “real” democratic processes.
I think there are things about judicial review that make it valuable on these two republican fronts, although I again leave it to the article to elaborate in detail. For now, I suggest that they include the fact that it works on the initiation of litigants who are displeased by legislation, and also that, unlike legislatures, courts are concerned in the first instance with the impact of legislation on individuals who are most burdened by it. There is also the fact that courts deal with legislation a) after it has been passed, b) as it applies to concrete circumstances and c) through the lens of a proportionality framework. Also, that d) courts have that coercive authority that places them on a higher plane than human rights commissions, for example.
Mattias Kumm’s use of the Lustig-Prean v United Kingdom example to make his case for judicial review as Socratic contestation illuminates these arguments. He points out that the nature of the process meant that the UK government was forced into a proportionality-based justification of the blanket ban on gays in the military that it would otherwise have avoided. It meant that government had to defend its law on the basis of objectives it was happy to endorse in a public forum, thus forcing the presumably unspoken reasons for it underground. It meant that they had to rely on those sanitized objectives around “operational effectiveness” and “morale in the military” in seeking to show that the extent of the interference with rights was in fact necessary. Once they did, their case began to wither away for want of plausibility.
Thus, through the institution of judicial review, Duncan Lustig-Prean got to eyeball his government on its interference with his rights, and his government had to back down once its justifications failed something like the tough luck test. At the same time, the process helped crystallize shifts in the public culture about the implications of the norm of non-discrimination in this domain that had presumably been developing in British society, while also itself presumably helping to generate further evolutions, however modestly, in subsequent public exchanges on related questions.
The other point of course is that in this lens we see that it is not a case of judges imposing a more enlightened norm on citizens and their representatives, thus civilizing public discourse. It is not even judges themselves that do the republican work. It is the process that does, or the interaction of the intrinsic features of that process with the various norms evolving in the broader public culture. Hence Kumm’s idea of judges in Socratic rather than Herculean garb.
There is more to be said about this republican case for the judicial review, not least the forms it demands or might tolerate. I address that and some other questions in the article itself. For now I mention that I think it suggests that insightful and too-easily-overlooked though Bellamy’s arguments may be, they do not make a definitive case against strong form judicial review. I argue that a republican political constitutionalism in principle tolerates such a form of judicial review, and probably embraces it.
Tom Hickey, Assistant Professor, School of Law and Government, Dublin City University
(Suggested citation: T. Hickey, ‘The Republican Core of the Case for Judicial Review’, U.K. Const. L. Blog (25th Jun. 2018) (available at https://ukconstitutionallaw.org/))