Judges are not constitutional theorists. Their role is a practical one: to provide impartial justice to parties in a particular case. But often, there is broad scope for disagreement as to how they should approach this task.
In constitutional cases, judges must start with the text of a written constitution, or relevant quasi-constitutional statute. Often, this will involve consideration of the original semantic meaning of constitutional language.1 But constitutional language alone is rarely a definitive guide to the resolution of constitutional controversies.
Judges must therefore consider a wider range of constitutional “modalities” — including broader constitutional history and tradition, case law, and constitutional structure.2
But these additional sources may themselves fail to provide clear answers to concrete constitutional controversies, or issues of constitutional “constructional choice.”3
One potential response for judges is to turn to a broader range of constitutional purposes, or “values,” as a further guide to constitutional construction. Constitutional values are ideas that find some support in other formal constitutional modalities (such as constitutional text, history, structure, and case law).4 But they represent deeper, policy-style commitments immanent within these formal modalities.5 As such, choosing which values to prioritize or promote may help advance — if not resolve — the challenges of constructional choice.
Constitutional values are ultimately contextual, and may vary widely between constitutional systems. But in most constitutional systems, there are a range of values that find constitutional support of this kind, including: commitments to independent and impartial justice; the rule of law; a “culture of justification”; and individual freedom, dignity, and equality.6 Constitutional democracies have an additional commitment to values of democratic participation and collective self-government.5 All of these values can also usefully inform a process of constructional choice and make it more principled and consistent.
These values can also, however, be indeterminate, and conflict in ways that raise new challenges of constructional choice for judges — or call for the development of heuristics for balancing competing constitutional values. One way to approach this balancing task is also to turn to constitutional democracy as a guide. In the United States, the leading theory of democracy-reinforcing judicial review is that provided by John Hart Ely, over 40 years ago, in Democracy and Distrust.7 But the theory has also been subject to sustained critique and does not fully capture contemporary risks to democracy or comparative insights about the promise and limits of judicial review.
An emerging school of constitutional thought thus focuses on developing a range of “neo-Elyian” accounts, which offer a more promising path for modern courts seeking to respond to the challenge of constitutional constructional choice. The remainder of the essay explains this neo-Elyian turn and especially my own contribution to it —a theory I have called “responsive judicial review” (RJR).8
Any account of judicial representation-reinforcement must start with John Hart Ely’s Democracy and Distrust.9 Ely, in this context, argued that courts can and should play an important role in countering two broad sources of democratic dysfunction: the capacity of political incumbents to self-entrench, or undermine the “channels of political change”; and the capacity for political majorities to overlook the rights and interests of “discrete and insular minorities.”10 In other cases, he suggested, courts should take a more restrained approach, and defer to the constructional choices of Congress and/or state legislatures.5
Ely’s understanding was built on the ideas set out by Justice Stone in Carolene Products footnote number 4,11 and the distinctive experiences of the U.S. post-Civil War, particularly a commitment to protecting the rights of African Americans as a group that arguably fit the definition of a political disadvantaged and relatively cohesive political minority.12 Because of this connection to US history and doctrine, Ely’s ideas have also had a large and enduring influence on American constitutional thought.13
But Ely’s ideas have encountered important criticism. Ely claimed that a central virtue of his approach was its relative “objectivity” or neutrality — or that it represented a procedural approach that avoided the need for judges to make contested judgments about constitutional morality.14 This claim, however, was the subject of immediate and sustained criticism from other leading U.S. constitutional scholars. For one, it dramatically understated the potential scope for disagreement about what democracy requires or what counts as a threat to its preservation.15 Further, the very notion of a “discrete and insular minority” itself represents a substantive judgment about what ideas of equality and minority rights—protection entail.16
Equality is a constitutional ideal that embodies three overlapping commitments: to individual freedom, to equality of opportunity and individual dignity, and to eliminating all forms of group-based hierarchy and subordination.5 “Discrimination” is a way of describing conduct that undermines the realization of some or all of these commitments. Yet a personal characteristic may be fraught from the perspective of individual freedom and dignity, and not be associated with any “discrete and insular minority.”17 Groups may also be historically disadvantaged or subordinate without living in a discrete or identifiable geographic community; young and old people, the disabled and women are all leading examples.16 They may likewise have a wide range of political allies and still face real barriers to overcoming past disadvantage through the political process.5
The approach in Democracy and Distrust also arguably fails to account for the full range of contemporary threats to democracy in many countries today — including the U.S. Even many previously stable democracies are now witnessing new waves of what Wojciech Sadurski has called “anti-constitutional” populism.18 This movement involves a range of direct and indirect attacks on almost all aspects of what David Landau and I have called the “democratic minimum core”: a commitment to (i) regular, free, and fair multi-party elections; (ii) political rights and freedoms; and (iii) a system of institutional checks and balances necessary to preserve these other principles.19 And while these attacks include the kind of partisan self-entrenchment envisaged by Ely, they go considerably beyond it.20
Even well-functioning democracies experience blockages, or sources of dysfunction, that go beyond those identified by Ely. Often, the legislative branch is dominated by the executive and party dynamics, which limit the seriousness and frequency of constitutional deliberation.21 And time and capacity constraints mean that not all issues, voices, or possibilities are considered in the legislative process. This, in turn, can impose real costs for the realization of “thicker” commitments to democracy — such as commitments to deliberation and minority-rights protection.
Because of this, in recent years there has been a renewed effort by comparative constitutional scholars to develop a more modern, comparatively informed theory of judicial representation-reinforcement — or a form of “comparative representation-reinforcing theory” (CRRT) or “comparative political process theory” (CPPT).22 Compared to Ely’s approach, CRRT is more openly substantive in scope and identifies a broader range of risks to democracy. At the same time, like CPPT, it draws on comparative constitutional experience to identify both the promise and limits to the courts’ capacity to effectively counter these risks — and it highlights the need for courts to engage in constitutional review with a simultaneous commitment to robust and restrained judicial intervention.
At the same time, CRRT (and CPPT) takes several forms.23 My own recent work on “responsive” judicial review is also only one example or species of CRRT. In the remainder of this essay, I outline the specific ideas about democracy and representation-reinforcement that lie at the heart of a theory of responsive judicial review (RJR), and what this implies for courts in approaching the task of (open-ended) constructional choice.
At the heart of a theory of RJR is a two-fold understanding of what democracy is or entails: a relatively “thin” notion of the “democratic minimum core” and a “thicker” notion of deliberation and minority rights protection.5 The idea of the democratic minimum core is drawn from an overlapping consensus among (reasonable) theories of democracy, as well as an overlap in the actual practices of constitutional democracies worldwide.24 Because of this, it represents a more or less agreed minimum of what democracy entails. And it is a key part of what ensures that a system of democratic politics is responsive to the views and preferences of democratic majorities8 But it clearly does not exhaust the range of reasonable conceptions of democracy.
There are both powerful principled and pragmatic reasons for understanding democracy in a thicker way, which encompasses a broader commitment to participation, deliberation, and minority rights protection.25 The only difficulty is that often the concrete content of these ideas is the subject of widespread, reasonable disagreement.26 And for this reason, a theory of RJR suggests that commitments to minority rights must be understood in ways that are connected to — rather than wholly divorced from — democratic majority understandings.27 That is, constitutional deliberation and rights protection must itself be “democratically responsive.”28
A theory of RJR also highlights three broad threats or risks to democracy, when understood in this way: (i) attempts to accumulate electoral or institutional monopoly power; (ii) legislative “blind spots”; and (iii) legislative (and executive) “burdens of inertia.”29 The risk of electoral and institutional monopoly power is a question of degree. Almost all democratic systems have some degree of partisan asymmetry.30 That is, the political playing field is never entirely even — but as Ely himself noted, the more uneven it is, the greater the risk to democracy. The same goes for attempts to weaken independent oversight over the political process.
Democratic blind spots can take three related forms.31 Blind spots of “application” arise where legislators fail to foresee the full range of ways in which laws may impact rights or other constitutional commitments. Often, this is because of time constraints, but it can also be the product of “bounded rationality,” or limits on human foresight. Blind spots of “accommodation” arise where legislators fail to identify mechanisms for protecting rights, or other norms, at little or no cost to their objective – and therefore, which they could reasonably be expected to have adopted, had they considered their availability. Again, this may be because of time constraints, but also training, capacity, or forms of motivated reasoning. And blind spots of “perspective” arise because of the limited breadth of perspectives represented in most legislatures, as well as the limited mechanisms that legislatures have for engaging with excluded perspectives.
Democratic burdens of inertia likewise come in three variants.32 “Priority-driven” inertia arises where democratic majorities favor changes to the law but give such change relatively low priority — so legislators also fail to prioritize these changes. “Coalition-driven” inertia arises where an electoral majority favors change, but a particular party is divided on an issue, so that the party’s leaders again have little incentive to prioritize consideration of a change. And “compound” inertia arises where there is some failure by the executive branchto protect rights or other constitutional norms, and an accompanying failure by the legislature to supervise the process of constitutional implementation.33
Courts in most constitutional democracies have a range of coercive and communicative tools with which to counter sources of democratic dysfunction of this kind,34 and they are also institutionally well-placed to do so. That is, they are able to issue remedies that alter the concrete rights and liabilities of parties, and the legal status quo, as well as reason in ways capable of persuading elite and public audiences of the reasonableness of certain rights-based claims.
At the same time, like all CRRT, RJR emphasizes the risks as well as rewards of judicial intervention in defense of democracy.35 If judicial review is too effective in countering democratic dysfunction, there will be little incentive for legislators and executive actors to improve their performance or engagement with constitutional norms. This kind of democratic debilitation can also have real costs for democratic constitutionalism,36 because legislators, executive, and “fourth branch” officials (or officials from independent agencies) consider a far wider range of cases than any court.37 In a theory of RJR, courts should also be mindful of this danger in calibrating the scope and strength of judicial review.
In addition, judges can sometimes misjudge the degree of democratic support for a particular approach to constructional choice. Certain court decisions may therefore meet with widespread political disagreement — including disagreement that is inherently reasonable from a democratic perspective. Other decisions may be met with disagreement that is inherently unreasonable, from the perspective of a commitment to constitutional democracy, but still sufficiently strong and widespread to pose a real risk to the ongoing power and independence of courts and their basic capacity to uphold constitutional requirements. Courts, a theory of RJR suggests, must therefore consider the risks of both democratic debilitation and backlash in the process of constructional choice.
RJR, therefore, is ultimately neither a theory of judicial intervention nor restraint. Rather, it points to the desirability of courts adopting a mix of broad and narrow, or strong and weak, judicial review — and review calibrated to account for the balance of risks to democracy from judicial intervention and nonintervention.
The term “weak” judicial review was first coined by Mark Tushnet as a means of describing review by courts that was nonfinal in nature.38 Since then, a range of scholars have also identified a variety of ways in which the finality of review may be limited.39 This includes formal mechanisms such as flexible procedures for constitutional amendment, doctrines, or express or implied repeal, express “notwithstanding” or legislative override clauses, and in some cases, formal powers to limit the jurisdiction of courts.40 But as the concept has evolved, it has also come to include a range of informal ways in which courts themselves may limit the finality of their decisions — including through the adoption of narrow or shallow forms of reasoning, delayed and noncoercive or purely declaratory remedies, and weakened norms of stare decisis.5 These different forms of weakened review are also potential complements, as well as substitutes, so that there is potentially a wide range of different models of strong, weak, and weak-strong/strong-weak judicial review.41
A theory of RJR also emphasizes the value of a mix of weak and strong review, and one sensitive to the relevant democratic context. In some cases, where there is real and proximate risk to the democratic minimum core, RJR suggests that judicial review should be broad and strong — and tempered or weakened only in order to avoid an equally pressing risk of democratic backlash. That is, judicial review should be strong or even super-strong in scope, and weak only as a prudential matter. In practice, this will often mean decisions that are broad and coercive in scope but delayed in effect — or strong-weak in approach.42
But where there is little risk of this kind, RJR suggests courts should place greater emphasis on the degree of elite and popular democratic support for their decisions, as well as the legal support for their preferred approach to constructional choice. Concerns about reasonable democratic disagreement, and “reverse burdens of inertia” (or the difficulty of legislators adopting reasonable responses to court decisions) will also mean that there will be a presumption in favor of a view that is weak-strong rather than wholly strong in form — or relatively narrow, even if accompanied by remedies that require some form of concrete action and reporting back to courts on compliance.
Responsive judging can be implicit, as well as explicit. Judges generally have a duty to provide reasons for their decisions. And this is a duty that extends to how they engage ideas about democracy and the broader context for their decisions. But it is not an unqualified duty: It is one that must be balanced against commitments to efficient and collegial judging and the maintenance of public confidence in the judiciary. In some cases, judges may therefore decide to engage in what is effectively a form of responsive view, without viewing it as necessary or desirable to explain their decision in this way.
Many courts could be seen as having engaged in a form of responsive judging at some point in time. As a theory, RJR also aims to offer guidance to judges as to what this approach entails; and in process, make it more accessible to a larger number of judges.
But even still, RJR will not be a theory that is relevant to all courts at all times. Some courts may lack the basic structural attributes necessary to engage in review of this kind. At a minimum, the idea of RJR depends on courts enjoying some degree of: (i) independence, (ii) legal and political support, and (iii) formal remedial power.43 It requires that parties have direct or indirect access to courts.44 And it generally requires a supportive legal culture: without this, judges may not even attempt to engage in review of this kind, let alone succeed in doing so. And not all courts will enjoy political and legal support of this kind.
Some forms of responsive review — aimed at protection of the democratic minimum core — may also be especially challenging for courts.45 Those seeking to erode democracy may be highly organized and enjoy a strong degree of political support, in which case the task facing courts is an especially challenging one. Or there may already be a degree of concentration in electoral or institutional power that means it is difficult for courts to promote electoral or institutional pluralism.46 In this case, the courts’ role will largely be to counter democratic blind spots and burdens of inertia and to promote other constitutional values, such as the rule of law or nonarbitrary government, rather than engaging in whole-sale responsive judging (which would require attempts to protect the democratic minimum core).
And not all judges will be equally well-placed to engage in responsive judging. Doing so requires a strong appreciation of the importance of orthodox legal sources, but also the broader political and social context for judicial review. For some judges, prior legal and political experience may make undertaking RJR relatively straightforward, whereas for others, it may require a greater investment of time and process of learning. But even still, there will be variation among judges in the ease with which they can engage in a task of this kind.
Responsive judging, therefore, is neither a wholly specific nor wholly general theory of judging. It aims to provide ideas that can potentially speak to a wide range of judges, across different contexts. But it does so with a clear appreciation of the preconditions needed for these ideas to make sense and its own limits as a practical account of how judges should approach the task of constitutional construction.
Rosalind Dixon is a professor of law and Director of the Gilbert + Tobin Centre of Public Law at UNSW Sydney. She is former co-president of the International Society of Public Law. She holds degrees from UNSW and Harvard Law, and was previously an assistant professor at the University of Chicago, and visiting professor at Harvard Law School, Columbia Law School and the National University of Singapore.
