Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics

Abstract

Democracies can function without judicial review. Deliberation by elected legislators is more reliable and more legitimate in solving problems and accommodating groups than deliberation by unelected judges. Under what circumstances, if any, can aggressive judicial review be defended? The traditional answer has been that judges enforcing our popularly ratified social contract (the Constitution) are not acting undemocratically. But key constitutional provisions are open textured. Due process of law, equal protection, and freedom of speech are not determinate commands; their breadth and ambiguity assure judicial discretion.