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A ‘Hard Core’ Case Against Judicial Review

Responding to Richard H. Fallon, Jr., The Core of an Uneasy Case For Judicial Review, 121 Harv. L. Rev. 1693 (2008)

In this essay, Professor Allan Hutchinson joins the debate regarding judicial review that recently has occupied the pages of this and other law journals. Arguing against judicial review, he challenges Professors Jeremy Waldron and Richard Fallon. Specifically, he challenges both professor’s commitments to democracy. He argues that democracy by definition includes a distrust of elite power, which includes the power of judicial review. Rather than bestowing moral authority on judges to decide questions for society, a robust version of democracy should place that authority entirely with the polity to resolve through democratic processes. Therefore, when Professors Waldron and Fallon allow for the possibility that there is some epistemologically “correct” decision in cases, they betray the cornerstone of democratic theory — that external truths do not matter, but instead what matters is the result of internal democratic deliberation. This is not to say that Professor Hutchinson’s version of a “strong democrat” is a rights skeptic or moral relativist; rather, the democrat simply has no concern for moral or rights-oriented truth.

Despite his ultimate disagreement with Professor Fallon, Professor Hutchinson does find value in Professor Fallon’s argument in favor of multiple veto points. Professor Fallon argues for judicial review in part by justifying it as an additional veto point in the democratic process. Professor Hutchinson praises this focus on process and elaborates the point to demonstrate that democracy should value a system that tests ideas through multiple decisional stages. Yet, he rejects judicial review precisely because it sanctions a system that concentrates the power to eliminate democratic decisions — decisions that have already passed through multiple veto points — in a group of elites rather than in the polity itself. Therefore, Professor Fallon’s focus on multiple veto points is useful, but misguided, since judicial review is not a democratically legitimate veto point. In short, “[i]n a society that takes democracy seriously, there is no privileged place for judicial proconsuls or their scholarly cohorts — citizens can govern best when they govern themselves.”