Democratic Objections to Structural Judicial Review and the Judicial Role in Constitutional Law

This article revisits my argument that structural judicial review – judicial review of those provisions of a constitution that establish the basic structure of government and divide power between the constituent parts of a federation – is vulnerable to the objection from democracy and defends that claim against arguments made by Jeffrey Goldsworthy and others. First, I deny that the democratic objection to judicial review can, by virtue of its commitment to respect for rights, be wielded only against rights review: on the contrary, I argue, it applies where judges have the power to interpret and enforce constitutional provisions or principles that are uncertain in their scope and which therefore require judges to make evaluative judgments in the face of reasonable disagreement. Structural judicial review routinely involves judges’ making, or reaffirming, choices of just this kind. Second, I deny that federal judicial review is immune from the objection either because it constitutes only a weak form of judicial review or because judicial review is a necessary attendant of federalism: on the contrary, federal judicial review requires judges to choose between contested conceptions of federalism in a manner not susceptible to legislative revision. In addition, I argue, there are institutional structures that would allow for the resolution of federal disputes without begging the question at the heart of federalism. Finally, I deny that judicial review of legislative procedures, of requirements establishing an independent judiciary, or of federal anti-discrimination norms (categories identified by Goldsworthy) create practically significant exceptions to my claim.