According to traditional arguments, judicial review is a legitimate element of representative government because it allows decisions about individual rights to be made in a venue more insulated from electoral pressure than are legislative institutions. The hope is that this insulation helps generate better outcomes than would a system of legislative supremacy. The relevance of this outcome-oriented perspective has been challenged on four main grounds: majoritarian, participatory, disagreement-based, and methodological. The first two contend that judicial review is procedurally illegitimate, while the second two argue that we should assess judicial review on procedural grounds. We show that none of these arguments undermine the traditional insulation-based and outcome-oriented approach to the question of judicial review's legitimacy.
ASJC Scopus subject areas
- Sociology and Political Science