On Responsive Judging


PICTURED ABOVE: Detail of Karl Witkowski’s 1908 painting “A Game of Marbles.” (Wikimedia, Public Domain)

I. Introduction

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 themselves 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, they may help advance — if not resolve — the challenges of constructional choice.

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.7 All of these values can also usefully inform a process of constructional choice, and make it more principled and consistent.

They too, however, can 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 do this is also to turn to constitutional democracy as a guide. In the US, the leading existing theory of democracy-reinforcing judicial review is that provided by John Hart Ely, over 40 years ago, in Democracy and Distrust.8 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 — in the form of a theory of “responsive judicial review” (‘RJR’).9

II. Democracy and Constitutional Constructional Choice: from Ely to CRRT

Any account of judicial representation-reinforcement must start with John Hart Ely’s Democracy and Distrust.10 Ely, in this context, argued that courts can and should play an important role in countering two broad sources of democratic dysfunction, namely: the capacity of political incumbents to self-entrench, or undermine the “channels of political change”; and for political majorities to overlook the rights and interests of “discrete and insular minorities.”11 In other cases, he suggested, courts should take a more restrained or deferential approach, and defer to the constructional choices of Congress and/or state legislatures.12

An understanding of this kind built on the ideas set out by Justice Stone in Carolene Products footnote number 4;13 and the distinctive experiences of the US post-civil war, namely 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.14 Because of this, Ely’s ideas have also had a large and enduring influence on American constitutional thought.15

But those 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.16 This claim, however, was the subject of immediate and sustained criticism from other leading US 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.17 For another, the very notion of a “discrete and insular minority” itself represents a substantive judgment about what ideas of equality, and minority rights protection entail.18

Equality is a constitutional ideal that embodies three overlapping commitments: a commitment to individual freedom, and equality of opportunity and individual dignity; and also a commitment to eliminating all forms of group-based hierarchy and subordination.19 “Discrimination” is also a way of describing conduct that undermines the realization of some or all of these commitments. Yet a characteristic may be fraught from the perspective of individual freedom and dignity, and not be associated with any “discrete and insular minority.”20 Groups may also be historically disadvantaged, or subordinate, without living in any discrete or identifiable geographic community: young and old people, the disabled and women are all leading examples.21 They may likewise have a wide range of political allies, and still face real barriers to overcoming past disadvantage through the political process.22

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 US Even many previously stable democracies are now witnessing new waves of what Wojciech Sadurski has called “anti-constitutional” populism.23 This movement also involves a range of direct and indirect attacks on almost all aspects of what David Landau and I have called the “democratic minimum core, namely: 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.24 And while these attacks include the kind of partisan self-entrenchment envisaged by Ely, they go considerably beyond it.25

Even well-functioning democracies experience blockages, or sources of dysfunction, that go beyond those identified by Ely. Often, parliament is dominated by the executive, and party dynamics, which limit the seriousness and frequency of constitutional deliberation.26 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 form of “comparative representation-reinforcing theory “(CRRT) or “comparative political process theory” (CPPT).27 Compared to Ely, CRRT is more openly substantive in scope and identifies a broader range of risks to democracy. At the same time, it draws on comparative constitutional experience to identify both the promise and limits to courts’ capacity to effectively counter these risks — and hence 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.28 My own recent work on “responsive” judicial review is also only one example or species of CRRT. In the remainder of this essay, however, I outline the specific ideas about democracy and representation-reinforcement that lie at the heart of a theory of responsive judicial review or RJR, and what this implies for courts in approaching the task of (open-ended) constructional choice.

III. Responsive Judicial Review

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.29 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.30 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 majorities.31 But it clearly does 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.32 The only difficulty is that, often, the concrete content of these ideas is the subject of widespread, reasonable disagreement.33 And for this reason, a theory of RJR suggests that they must be understood in ways that are connected — rather than wholly divorced — from democratic majority understandings.34 That is, constitutional deliberation and rights protection must itself be “democratically responsive.”35

A theory of RJR also highlights three broad threats or risks to democracy, in this dual sense: (i) attempts to accumulate electoral or institutional monopoly power; (ii) legislative “blind spots”; and (iii) legislative (and executive) “burdens of inertia.”36 The risk of electoral and institutional monopoly power is a question of degree. Almost all democratic systems have some degree of partisan asymmetry.37 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.38 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.” 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. 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, and limited mechanisms which legislatures have of engaging with excluded perspectives.

Democratic “burdens of inertia” likewise come in three variants.39 “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 party leaders again have little incentive to prioritize its consideration. And “compound” inertia arises where there is some failure by the executive branch to protect rights or other constitutional norms, and an accompanying failure by the legislature to “supervise” the process of constitutional implementation.40

Courts in most constitutional democracies also have a range of “coercive” and “communicative” tools with which to counter sources of democratic dysfunction of this kind.41 Often, they are also institutionally well-placed to do so.

At the same time, like all CRRT, RJR emphasizes the risks as well as rewards of judicial intervention in defense of democracy.42 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 constitutionalism43 — because legislators, executive, and “fourth branch” officials consider a far wider range of cases than any court.44 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 non-intervention.

The term “weak” judicial review was first coined by Mark Tushnet as a means of describing review by courts that was non-final in nature.45 Since then, a range of scholars have also identified a variety of ways in which the finality of review may be limited.46 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.47 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 non-coercive remedies, and weakened norms of stare decisis.48 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.49

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.50

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 legitimacy of their preferred approach to constructional choice. Concerns about reasonable democratic disagreement, and “reverse burdens of inertia,” 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.

IV. Responsive Judicial Review and Judging

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.

On this view, there are also many courts that 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 an approach of this kind 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.51 It requires direct or indirect access to courts.52And 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.53 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.54 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 non-arbitrary government, rather than engaging in whole-sale responsive judging.

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 this 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 hence, its own limits as a practical account of how judges should approach the task of constitutional construction.

Rosalind Dixon is a Professor of Law, at the University of New South Wales, Faculty of Law. She earned her BA and LLB from the University of New South Wales, and was an associate to the Chief Justice of Australia, the Hon. Murray Gleeson AC, before attending Harvard Law School, where she obtained an LLM and SJD. Her work focuses on comparative constitutional law and constitutional design, constitutional democracy, theories of constitutional dialogue and amendment, socio-economic rights and constitutional law and gender, and has been published in leading journals in the US, Canada, the UK, and Australia. Read full bio »

  1. Cass Sunstein, How to Interpret the Constitution (2023).
  2. Philip Bobbitt, Constitutional Interpretation (1991).
  3. Lawrence B. Solum, The Interpretation-Construction Distinction, 27 Const. Comment. 95 (2010).
  4. See Rosalind Dixon (ed.), Australian Con Values (2018); Rosalind Dixon, The Functional Constitution: Re-reading the 2014 High Court Constitutional Term, 43 Fed. L. Rev. 455 (2014).
  5. Id.
  6. Rosalind Dixon, Responsive Judicial Review: Democracy and Dysfunction in the Modern Age (2023).
  7. Id.
  8. John Hart Ely, Democracy and Distrust (1980). See discussion in Rosalind Dixon and Michaela Hailbronner, Ely in the World: The Global Legacy of Democracy and Distrust Forty Years On, 19 Int. J. Const. Law 427 (2021).
  9. Dixon, supra note 6.
  10. Ely, supra note 8.
  11. Id at 103.
  12. Id.
  13. United States v. Carolene Products Co., 304 US 144 (138); Ely, supra note 8 at 75-76.
  14. See discussion in Dixon, supra note 6 at 53.
  15. See Ryan D. Doerfler and Samuel Moyn, Ghost of John Hart Ely, 75 Vand. L. Rev. 769 (2022).
  16. Ely, supra note 8 at ch 2. See also discussion in Dixon, supra note 6 at 51-52.
  17. See e.g. Dixon, supra note 6 at 51-52; Laurence H. Tribe, The Puzzling Persistence of Process-Based Constitutional Theories, 89 Yale L.J. 1063 (1980); Mark Tushnet, Darkness on the Edge of Town: The Contributions of John Hart Ely to Constitutional Theory, 89 Yale L.J. 1037 (1979); Daniel R. Ortiz, Pursuing a Perfect Politics: The Allure and Failure of Process Theory, 77 Va. L. Rev. 721 (1991); Bruce A. Ackerman, Beyond Carolene Products, 98 Harv. L. Rev. 713 (1984); Schachter, Ely and the Idea of Democracy, supra note 147.
  18. Dixon, supra note 6 at 53-54.
  19. Id.
  20. Rosalind Dixon, The Supreme Court of Canada and Constitutional (Equality) Baselines, 50 Osgoode Hall Law J. 637 (2013).
  21. Dixon, supra note 6 at 53-54.
  22. Id.
  23. Wojciech Sadurski, Poland’s Constitutional Breakdown (2019).
  24. Rosalind Dixon and David Landau, Abusive Constitutional Borrowing: Legal Globalization and the Subversion of Liberal Democracy (2021).
  25. Dixon, supra note 6 at 65-72.
  26. David Kenny and Conor Casey, The Resilience of Executive Dominance in Westminster Parliament: Ireland 2016-2019, Pub. L. 355 (2017). See e.g. Janet Hiebert, Charter Conflicts: What is Parliament’s Role? (2022).
  27. See Stephen Gardbaum, Comparative Political Process Theory, 18 Int’l J. Const. L. 1410 (2020); Michaela Hailbronner, Political Process Review: Beyond Distrust, 18 Int’l J. Const. L. 1458 (2020); Aileen Kavanagh, Comparative Political Process Theory, 18 Int’l J. Const. L. 1483 (2020); Rosalind Dixon, A New Comparative Political Process Theory?, 18 Int’l J. Const. L. 1490 (2020); Stephen Gardbaum, Comparative Political Process Theory: A Rejoinder?, 18 Int’l J. Const. L. 1503 (2020). See also Rosalind Dixon, Comparative Representation-Reinforcing Theory, Glob. Con. (forthcoming).
  28. See e.g. Niels Petersen, Proportionality and Judicial Activism: Fundamental Rights Adjudication in Canada, Germany and South Africa (2017); Manuel José Cepeda Espinosa & David Landau, A Broad Read of Ely: Political Process Theory for Fragile Democracies, 19 Int’l J. Const. L. 548 (2021); avid Landau, A Dynamic Theory of Judicial Role, 55 B.C.L. Rev. 1501, 1533– 35 (2014); Katharine Young, A Typology of Economic and Social Rights Adjudication: Exploring the Catalytic Function of Judicial Review, Int’l J. Const. L. 385, 418 (2010); Malcolm Langford, Judicial Politics and Social Rights’, in The Future of Economic and Social Rights 66 (Katherine Young eds., 2019); Gardbaum, supra note 27. See discussion in Dixon, supra note 6 at 55-58.
  29. Id.
  30. Rosalind Dixon and David Landau, Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment, 13 Int’l J. Const. L. 606 (2015); Dixon and Landau, supra note 24. Compare also Vlad Perju, Elements of a Doctrine of Transnational Constitutional Norms, Int’l J. Const. L. (forthcoming).
  31. Dixon, supra note 6.
  32. See e.g. John Rawls, Political Liberalism (1993); Jürgen Habermas, Between Facts and Norms (1992); Frank Michelman, Constitutional Essentials: On the Constitutional Theory of Political Liberalism (2022); Roberto Gargarella, The Law as a Conversation among Equals (2022).
  33. See e.g., Jeremy Waldron, Law and Disagreement (1999).
  34. Dixon, supra note 6 at 44-46
  35. Dixon, supra note 6 at 63-64.
  36. Dixon, supra note 6 at ch 3, especially 82-84.
  37. On this generally, see Joseph Fishkin and David Pozen, Asymmetric Constitutional Hardball, 118 Colum. L. Rev 915 (2018).
  38. Dixon, supra note 6 at 82-84. See also Rosalind Dixon, Creating Dialogue about Socioeconomic Rights: Strong-Form versus Weak-Form Judicial Review Revisited, 5 Int’l J. Const. L. 291 (2007) (‘Creating Dialogue’); Rosalind Dixon, The Core case for Weak-Form Judicial Review, 38 Cardozo Law Rev. 2193 (2017) (‘Weak-Form Judicial Review’).
  39. Dixon, supra note 6 at 84-87. See also Dixon, Creating Dialogue, supra note 38; Dixon, Weak-Form Judicial Review, supra note 38.
  40. Cf Gillian E. Metzer, The Constitutional Duty to Supervise, 124 Yale L. J. 1836 (2015).
  41. Dixon, supra note 6 at 151-57.
  42. Dixon, supra note 6 at ch 6.
  43. See Mark Tushnet, Policy Distortion and Democratic Debilitation: Comparative Illumination of the Countermajoritarian Difficulty Debilitation, 94 Mich. L. Rev. 245 (1995); Dixon, supra note 6 at 200-201; Eoin Carolan, Dialogue isn’t Working: The Case for Collaboration as a Model of Legislative- Judicial Relations, 36 Legal Stud. 209 (2016); Aileen Kavanagh, The Collaborative Constitution (2023).
  44. See e.g. Frederick Schauer, The Court’s Agenda – and the Nation’s, 120 Harv. L. Rev. 4 (2006). On the fourth branch, see Mark Tushnet, The New Fourth Branch (2021).
  45. Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (2008).
  46. See e.g., Kavanagh, supra note 43; Rosalind Dixon, The Forms, Functions, and Varieties of Weak(ened) Judicial Review, 17 Int’l J. Const. L. 904 (2019).
  47. Dixon, supra note 46.
  48. Id.
  49. Dixon, supra note 38; Dixon, supra note 46; Dixon, supra note 6.
  50. Dixon, supra note 6 at ch 7.
  51. Id at 167-80. See also Rosalind Dixon, Responsive Judicial Review in Central & Eastern Europe, 48 Rev. Cent. and E. Eur. L. 375 (2023).
  52. See Dixon, supra note 51.
  53. Dixon, supra note 6 at 217-20.
  54. Id at 274. See also Rosalind Dixon, Responsive Judicial Review in Asia, 53 Hong Kong Law J. 489 (2023).