Judicial review

Why do democracies let unelected judges cancel laws that elected majorities passed?

A parliament elected last year passes a statute by a comfortable margin. Five people nobody voted for, appointed years earlier, declare it void. Stated that baldly it looks like an error in the design — what Alexander Bickel named the counter-majoritarian difficulty.

The tempting defence is that judges know better. Let us not take that route: it proves far too much, because if expertise licensed overruling majorities it would license it on tax rates and transport policy too. Something narrower must be going on.

Separate two things that get run together. One is entrenchment — making certain rules harder to change than ordinary law — which constitutional-entrenchment.md works through as a commitment device. The other is enforcement: who decides whether today's statute has crossed one of those limits. This piece is only about the second, and the second is what generates the puzzle. Entrenchment alone is a promise; the question is who holds the promisor to it.

So ask: could the legislature hold itself? A limit whose application is determined by the body it constrains is not a limit — it is a preference the body may set aside whenever it judges its own case. Nobody may be judge in their own cause, and that old principle is doing all the work here. Whoever enforces the limit must hold a position that does not depend on the majority being constrained. Note what follows: unelectedness is not a regrettable side effect of judicial review, it is the specification. An enforcer facing the same electorate on the same cycle would face precisely the incentive the limit exists to counteract.

Why would a majority ever agree to that? Because drafters are uncertain who will be in the majority next. If you might be the losing side within a decade, a body that can stop the winners is insurance rather than a constraint — the insurance account associated with Tom Ginsburg, attributed here from memory. It predicts something checkable: strong review should appear where political competition is real and expected future dominance low, and a founding party confident of permanent rule should create either no court or a captive one.

Now the awkward part. A court commands neither the purse nor the sword. Its rulings hold only while other officials choose to obey, so its power rests on accumulated public standing rather than force. Robert Dahl's observation that the United States Supreme Court has rarely stood for long against a durable national lawmaking majority is recalled here rather than verified, and I mention it only to set it aside: the argument needs the direction, not any count. Courts behave as bodies conserving a limited stock of legitimacy behave — spending it on transient majorities, procedural irregularity and the text's clearest cases, and stepping carefully around settled ones.

Which suggests the mechanism is not what people assume. If review worked by giving judges the last word, systems where the legislature keeps the last word should do nothing at all. Two exist. Canada's constitution carries a notwithstanding clause allowing a legislature to re-enact over a rights ruling; the United Kingdom's Human Rights Act lets courts declare a statute incompatible without voiding it. On the "judges decide" theory these are decorative. In practice overrides are rare and politically expensive, and governments have more often than not amended after a declaration — a direction rather than a rate, because the counting is contested.

That is the falsification test. The claim is that review works by forcing a second decision that is public, reasoned and costly — not by finality. If so, weak-form review should constrain legislatures noticeably even though it binds nothing. Observe weak-form legislatures overriding routinely and cheaply, with outcomes indistinguishable from having no review, and the claim fails. Observe strong-form courts prevailing against durable majorities as easily as transient ones, and the legitimacy-stock story fails with it.

Three neighbours border this one. constitutional-entrenchment.md shares the commitment tag and answers the prior question — why bind yourself at all — treating the difficulty of amendment as the whole value. This piece begins where that ends: entrenchment without an enforcer indifferent to the current majority is a promise adjudicated by the promisor. why-do-democracies-separate-powers.md covers the architecture of dividing authority; review is one arrangement inside it, and the one needing its own justification because the other branches at least face elections. standing-to-sue.md handles who may start the machinery — the gate in front of everything here.

Three folk accounts should be discarded. "Judges are wiser" fails as shown above; there is no reason to think courts outperform legislatures on contested merits. "The constitution requires it" fails empirically: plenty of constitutions list rights and provide no review, and in several countries — the United States among them — the power was asserted by the court, not granted in the text. "It protects minorities" confuses an output with a mechanism; courts have protected property and incumbents at least as often as unpopular minorities, and nothing in the design fixes which way the shield points.

Two caveats. Whether review actually produces better rights outcomes is unsettled and comparativists disagree; the argument here is about why the institution exists and how it holds, not that it works. And it has a known failure mode: a court packed or captured by a durable majority delivers the form of review while removing its point, which is why appointment rules matter more to the institution's function than the doctrine it applies.

• How appointment rules and tenure determine whether a court stays insulated or becomes an arm of the majority.
• Why some constitutional courts rule only in the abstract, before a law is applied, and what that changes.

Every term the collection defines is gathered in the glossary.