Professor Jeremy Waldron is perhaps the world’s most influential critic of what he calls “strong judicial review of legislation” (SJRL). (P. 1.) This form of judicial review—found paradigmatically in the United States—gives to courts the final say on the constitutionality of laws that are subject to judicial review. Now, a court in a system of SJRL will, on occasion, decide a case in a way that a critic of SJRL will disagree with. How should such a critic respond to this situation? That is the question that Professor Waldron answers in Denouncing Dobbs and Opposing Judicial Review (Denouncing Dobbs). This SSRN paper (written after the draft opinion of Dobbs v Jackson Women’s Health was leaked but before the decision was published) is a rich exploration of issues in constitutional theory and an enormous contribution to the comparative constitutional law literature.
I begin and end this review with some remarks about Professor Waldron’s contribution to the field of comparative constitutional law. Comparative constitutional law scholars often contrast SJRL with what Professor Waldron calls “weak judicial review of legislation” (WJRL). (P. 7.) Professor Waldron illustrates this contrast through a discussion of the different institutional consequences that would flow from, on the one hand, a court finding a law to be cruel in a system of SJRL (the United States), and, on the other hand, courts arriving at the same finding in systems of WJRL (in the UK and New Zealand). Professor Waldron writes:
In the United States, a finding that a legislated punishment is cruel (and unusual) will lead to the legislation being struck down. In Britain, that finding (or a similar finding that a given legislated punishment is “inhuman”) may lead to a Declaration of Incompatibility, which is likely to be followed by a legislative amendment. In New Zealand, such a finding may lead judges to strain for an interpretation (often a pretty distant one), which is consistent with [section 9 of] the NZ Bill of Rights Act. (Pp. 7-8.)
This contrast illustrates a subtle and important point. According to Professor Waldron, one can make a judgment about whether a law imposing cruel punishment is constitutional, without embroiling “the person making it in the practice of SJRL. That judgment would make sense even if it were associated with WJRL.” (P. 8.)
An important consequence flows from this distinction between the fact of a constitutional judgment, and the institutional means and implications of exercising constitutional judgement. When faced with a law that is of questionable constitutional validity, a scholar, official, or citizen can answer two distinct questions: “’Is the measure constitutional?’ and ‘Who should decide the issue of constitutionality?’” (P. 10.)
Professor Waldron notes that when answering the first question, we (scholars, legislators, administrators or citizens) may be tempted to believe that we should rely on judicial decisions, for fear that if we didn’t, our reasoning would “have no focus, no determinacy, no univocality.” (P. 13.) Professor Waldron’s own analysis of the constitutionality of legislative restrictions on abortion suggests that this fear is unfounded. He examines the 1st, 3rd, 4th, 9th, 14th and 19th Amendments, and finds that “the Bill of Rights conveys a powerful principle of respect for individual privacy, freedom, and equality, particularly in matters of personal autonomy and gender equity.” (P. 14.) From this exercise in constitutional interpretation, he concludes that “the Constitution commands that women are to be protected in their control of their own reproductive capacities, at least up to the viability of fetal life and … it [the Constitution] requires also the most careful scrutiny of restrictions imposed after that time.” (P. 14.)
Professor Waldron concedes that this type of reasoning is associated with judges (and, indeed, that it is “used by” and was “invented for” them (P. 15)) but he insists that non-judicial actors can also engage in it. And, Professor Waldron argues, if this form of argumentation is deployed habitually in political debate, “it will over time resemble judicial reasoning less and less.” (P. 15.) He argues, moreover, that non-judicial actors undertaking this exercise need not aim to predict what courts would say about the constitutionality of a given law. According to Professor Waldron, one consequence of this shift away from judicial decisions is that we can concentrate on the substantive question of what makes a particular law constitutional or not, rather than on the orthogonal issue of whether a particular precedent should be upheld. On a comparative note, he acknowledges that stare decisis might have a role to play within a system of WJRL. Furthermore, invoking the work of Professor Michael Gerhardt, he gestures towards the possibility of a role for “non-judicial precedents”, or decisions by actors within institutions other than courts that can help settle questions of law “for subsequent decision-makers.” (P. 17.)
Professor Waldron then raises a pointed question: is a citizen who finds a law to be unconstitutional legally obliged to respect that law? The late Professor Ronald Dworkin posed this question in the context of a citizen who views a Supreme Court decision upholding a law to be incorrect, and who thus believes the law itself to be unconstitutional. Professor Dworkin’s answer was that an unconstitutional (and unjust) law “has no claim on our obedience at all.” (P. 23.) Yet, according to Professor Waldron, this answer comes at a cost to the settlement function of law. If we (citizens, officials, and judges) are free to disobey laws expressing constitutional judgments that we disagree with, then the legal system loses its ability to “settle on a view or set of views that can stand in the name of us all.” (P. 25.)
Professor Waldron’s own answer to the pointed question is that a citizen “is entitled to act on as well as arrive at her own judgment about unconstitutionality.” (P. 30.) In the aftermath of Dobbs, the particular forms this action will take—”counting votes, running primaries, raising money, organizing coalitions, holding opponents accountable, and mobilizing popular support for reproductive choice” (P. 31)—will be resolutely political, and will be settled in state legislatures. These forms of opposition to the Supreme Court’s decision are consistent with the views and commitments of a critic of SJRL, and they can be undertaken within a system of SJRL.
Professor Waldron thus responds to the challenge that he set himself at the beginning of this elegant and provocative article. Perhaps inevitably, he leaves questions unanswered and some of those questions open rich avenues for comparative constitutional law research. I close this review essay by pointing to one possible line of inquiry.
Comparative constitutional law scholars might note that the course of action Professor Waldron prescribes for the opponent of Dobbs is possible, in part, because of the particular nature of the United States’ federal structure. In other words, it is because of how the division of powers is constitutionally entrenched in the United States that—in states where abortion has not been made illegal—opponents of Dobbs can express opposition to the Supreme Court’s decision without engaging in direct legal disobedience and without, therefore, undermining the settlement function of law. Comparative law scholarship may point us to an example of an apex court in a unitary state (with SJRL) rendering a constitutional judgment that citizens—relying on their own constitutional reasoning—disagreed with. How might citizens and critics of SJRL in this kind of jurisdiction act on their own constitutional judgments, without undermining the settlement function of law within their constitutional state?
