With Responsive Judicial Review: Democracy and Dysfunction in the Modern Age, Rosalind Dixon has made an important contribution to the literatures on judicial review and comparative constitutional law. Her argument is subtle and detailed, drawing on an extensive body of academic literature and case studies from around the world. This brief review will highlight two aspects of the argument that make the book an indispensable work: (1) its overview of relevant academic debates and (2) its original contributions to those debates.
Overview of Relevant Academic Debates
Dixon provides a concise, yet thorough, overview of a series of academic debates about judicial review. One debate focuses on the capacities of judges and courts. Dixon notes that constitutional theorists have tended towards either an “everything” or “nothing” view of judges and courts. (P. 13.) Dixon places Ronald Dworkin in the “everything” camp and describes its members as tending “to assume a heroic conception of individual judicial skill and capacity and even more ambitious view of what courts can achieve as institutions.” (P. 13.) Dixon puts Gerry Rosenberg in the “nothing” camp. She argues that according to this camp’s members, judges are “deeply unheroic in character” and courts either are “almost entirely ineffective in creating social and political change” or they make such change difficult “by adding to the perceived legitimacy of deeply flawed existing democratic constitutional structures.” (P. 13.)
A second debate that Dixon surveys is about constitutional construction, or “how best to interpret the … open-ended language of written constitutional guarantees.” (P. 25.) On one side of the debate stand originalists who argue that courts construing a constitution should “focus on the original intentions of those who wrote and ratified a constitution, or the public meaning of constitutional language.” (P. 37.) According to Dixon, originalists further argue that courts should only depart from these sources of constitutional construction and draw implications from the text when these are “strictly necessary to the proper functioning of the constitutional system as a whole.” (P. 37.) Dixon places on the other side of the debate realists and living constitutionalists. According to the realists, those who draft and ratify a constitution have diverse intentions and the public meaning of constitutional language is indeterminate. As a consequence, they argue that judges inevitably consider “social and political values and consequences” (P. 37) when constructing a constitution. Living constitutionalists argue that a constitution’s legitimacy is increased when courts engaging in constitutional construction are attentive to “contemporary community values.” (P. 38.) Moreover, the living constitutionalist argues that courts can draw implications from the constitutional text in order “to advance the overall purposes of the constitution.” (P. 38.)
A third debate surveyed by Dixon focuses on the democratic implications of judicial review. For some authors, constitutions set out an expansive set of rights and courts constructing a constitution “promote both commitments to freedom, dignity, and equality and…thicker, more substantive democratic ideals.” (P. 45, emphasis removed.) Dixon takes Dworkin to be representative of this view, noting that for him, the body of basic constitutional rights includes “notions of privacy, free movement, decisional autonomy, non-discrimination, or freedom from cruel, inhuman and degrading treatment.” (P. 45.) Dixon contrasts this expansive view of constitutional rights, and courts’ role in constructing them, with the political constitutionalists’ more constrained view of the role of courts in a democracy. Dixon notes that according to Jeremy Waldron, a prominent political constitutionalist, majority decision-making within representative legislative bodies is the “fairest and most principled way” (P. 46) of resolving reasonable disagreements about rights. Waldron notes that, by contrast, resolving these kinds of disagreements through judicial review disenfranchises citizens, as it privileges “majority voting among a small number of unelected unaccountable judges.” (P. 46, citing Waldron, The Core of the Case, P. 1353.)
Original Contribution to Academic Debates
Dixon’s overviews of the above debates are invaluable because they make the authors and their works accessible to a broad readership. Equally valuable are her original contributions to those debates. Dixon draws on the work of John Hart Ely and comparative political process theorists. She notes that according to Ely, judicial review should correct for malfunctions in the legislative process that arise (1) when laws restrict the political process in order to benefit legislative incumbents and (2) when majorities enact laws that negatively affect “discrete and insular minorities”, out of hostility to those minority groups or because the majority refuses to “recognize commonalities of interest” that they share with those groups. (P. 48.) Dixon observes that Ely’s theory has been criticized because it is focused on a relatively narrow range of democratic dysfunctions that are particular to the United States. (P. 51.) According to her, comparative political process theorists identify a more expansive range of dysfunctions that modern democracies face and that courts can respond to. Stephen Gardbaum, for instance, identifies “an important role for courts in many democracies in countering four distinct political market failures: (i) non-deliberativeness in the legislature; (ii) legislative failures to hold the executive accountable; (iii) government capture of independent institutions; and (iv) capture of the political process by special interests.” (P. 55.)
Dixon builds on the insights of Ely and modern comparative political theorists by (1) identifying three distinct risks of democratic dysfunction that courts can counter, (2) specifying how (and under what conditions) courts can counter those risks, and (3) describing risks to democracy that judicial review itself can give rise to.
Risks of Democratic Dysfunction
The three kinds of democratic dysfunction Dixon identifies are: antidemocratic monopoly power, democratic blind spots, and democratic burdens of inertia. (P. 2.) Risks of antidemocratic monopoly arise when those in power seek to “entrench their own hold on power by undermining the political process, the viability of the political opposition and/or the power of independent institutions.” (P. 72.) Democratic blind spots arise when legislators “impose[s] unintended or unanticipated limitations on constitutional protections” because they delegate the task of weighing and accommodating constitutional interests to committees that are “structured in ways that emphasize certain perspectives or interests over others.” (P. 82-83.) Dixon notes that when legislative bodies themselves do not represent the full range of perspectives, and in particular those of historically disadvantaged groups, “the legitimacy of democratic legislation itself” will be called into question. (P. 84.) Dysfunctional democratic burdens of inertia arise when a democratic system fails “to respond to the alignment between democratic majority understandings and thicker constitutional commitments.” (P. 88.) These kinds of burdens become dysfunctional when, for instance, legislatures persistently fail to respond to emerging democratic threats, such as voter suppression, and public trust is eroded as a consequence. (P. 89.)
The Role of Judicial Review in Countering Democratic Dysfunction
When Dixon turns to the role of courts in countering the above kinds of democratic dysfunction, she engages with debates about judicial review. She does so by setting out three broad principles for courts to consider when they consider whether to draw constitutional implications from a constitution. First, “[i]mplications that have limited legal support, and no real political justification will be presumptively illegitimate.” Second, “[i]mplications designed to protect the ‘minimum core’ of democracy will generally be legitimate, regardless of the degree of existing legal support for such an implication.” Third, [i]mplications designed to counter blind spots or burdens of inertia” will only be legitimate “where they enjoy some meaningful degree of legal support, or are designed to counter a serious and irreversible risk to human dignity, or systemic forms of inertia or state failure.” (P. 100.) Dixon proposes that courts give effect to these principles by calibrating the intensity of judicial review and she draws on examples from around the world to illustrate her arguments. (P. 95.)
Finally, Dixon identifies risks to democracy that judicial review itself may give rise to and she proposes ways for courts to respond to these risks. Dixon labels the first kind of risk “reverse burdens of inertia” and she stipulates that they arise when there is “(i) widespread disagreement with a court decision; (ii) disagreement that is reasonable; and (iii) an inability for legislators to give voice to that disagreement or engage in ‘dialogue’ with a court.” (P. 181.) The second, related risk is “democratic backlash” which arises when there is significant disagreement with a court, but is focused on “a form of democratic retaliation—that is, an attack on the court itself as an institution.” (P. 182.) The third risk, “democratic debilitation” arises when courts keep laws and policies in line with shifting majority expectations but in so doing “reduce[s] the incentive for legislators themselves to undertake this role” (P. 181-82.) Dixon argues that in response to these risks, courts should calibrate the scope and finality of their decision. That is, they can “reason broadly or narrowly, issue strong or weak remedies, or rely on weak or strong stare decisis.” (P. 216.) Dixon is particularly convincing when she identifies the kinds of considerations that courts should weigh when making these decisions. For instance, she notes that when courts adjudicate cases involving attacks on the minimum core of a polity’s democratic commitments, courts will consider engaging in a weak form of judicial review for pragmatic, rather than principled reasons. According to Dixon, “narrow rulings or weakened remedies, may help courts ‘to live to fight another day’ in defense of democracy, rather than further opportunities for the expression of reasonable disagreement.” (P. 217, citing Rosalind Dixon & Samuel Issacharoff, Living to Fight Another Day: Judicial Deferral in Defense of Democracy.)
I hope to have given a sense of the significance of Dixon’s arguments, but there is much more to them than I have been able to present in this very short review. Indeed, it is the scope, subtlety and depth of Responsive Judicial Review: Democracy and Dysfunction in the Modern Age that make it an essential volume in the library of anyone interested in cutting edge work on judicial review and comparative constitutional law.
