Earlier this week I did a debate about the election of justices to the US Supreme Court. Whilst I don't actually think that's a particularly good idea, the case we made in favour of election contained a lot of elements that I agreed with. Essentially I am broadly suspicious of judicial review, particularly as applied to striking down legislation that has been passed. This kind of review generally involves considering a law against a constitution or some higher law. I have a couple of problems with this.
Firstly, it's not clear why the democratic wish of an electorate for a certain policy should be overruled by the caveats decided upon some lengthy period of time earlier. If Australians want plain packaging for cigarettes, or Americans want healthcare that involves compelling people to buy insurance, the fact that constitution-writers didn't think those were good ideas doesn't seem a particularly legitimate reason to prevent modern citizens from implementing them.
The attraction, I think, comes from people's natural moral objectivism: some things (property rights; racial discrimination) are so definitively right or wrong that a democratic wish to the contrary shouldn't be allowed to override that. We then look to the courts to enforce such moral dictates and prevent laws that we see as being wrong. I think the case for moral values overriding democracy is strong (everybody does! see the previous post) but the fact is that it's not possible to determine with certainty things which are definitively right or wrong. Indeed that is the reason we might look to the courts in the first place: that the values and rights we believe in aren't generally agreed on, and so democracies sometimes act contrary to them. But if they aren't generally agreed on or definitively known, it doesn't seem justifiable to throw away the standard method of resolving these kinds of values differences - democracy - just because you hold a view particularly strongly, especially given that there are doubtless plenty of people who hold the opposite view just as strongly. American Founder-worship explains this to an extent, but unless we really believe that the people who happened to draft our constitutions were uniquely more competent at making moral judgements, relying on courts for this purpose seems incongruous.
That leads me to the second issue, interpretation. Here some examples are helpful.
Death penalty cases in the US turn on the Eighth Amendment which forbids "cruel and unusual" punishments. It is entirely to the court's discretion to determine wheter a punishment meets that test. Obviously, being lawyers, judges have developed a complex set of criteria to determine this. But those criteria are themselves arbitrary, and even within them there is much scope for personal opinion.
Roe vs Wade legalised abortion in the United States. The case and subsequent ones revolve around the right to privacy, and to what extent it can be exercised without state intereference. They involve complex tests balancing that right against the interests of the state.
Here's the text of the clause on which all that is based:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law."
That's it. Into this, and particuarly the words "due process", the Court reads a right to privacy, and then examines the interests of the person and the state to determine whether that due process has been provided. That's great for people who want to have abortions. It's also, quite clearly, a deeply subjective reading which might not have arisen if historical courts had had different compositions, or if that particular court had been differently composed.
If courts don't make decisions in a definitive, objectively correct way, it's worth taking a look at what ultimately determines the subjectivities that get brought to bear. Interpretive philosophies make up a broad church: do we read only the text and nothing external to it, or do we study the intent and original meaning of the writers? Do we shackle ourselves to original context, or adapt it to modern society?
Different judges take different approaches, naturally - but which judges get appointed is a function of the political climate at the time. Leaders will appoint judges who are likely to make decisions in keeping with their interests. That means that judicial interpretation ultimately becomes little more than a convoluted and indirect proxy for popular opinion. Applying a lagging proxy of public opinion as a test to legislation that (generally) comes about because of more direct public opinion seems peculiar. (Obviously the case is different for high federal courts ruling on state law, but this is really an issue of whether federal/national opinion should overrule local/state opinion, not an issue of judicial review.)
So. Thanks to the problems of interpretation, judicial review doesn't really offer definitive upholding of a constitution or basic law. Moreover it's unclear why exactly we would want it to. The process of allowing judges to strike down laws does little more than allow them to apply dressed-up personal biases (as selected by political process) to those laws. If there are certain features of law or certain types of policies which we don't want our society to be subject to, then it is our burden to participate in politics so that they don't. We cannot pass that burden to judges. It is neither rational nor effective. Judicial review is a smokescreen which should not exist.
PS. The things I've written here don't really apply to judicial review of executive action (which is the main kind in the UK, for example) Although it might hit some of the same issues (a certain executive action might be democratically mandated, for instance) they don't apply in the same way - if you have a mandate for an action, amend the law so that it is permissible and then do it. In my mind this kind of review is really closer to just arresting someone for breaking the law.