I’ve long been a bit skeptical of the merits of American-style strong judicial review as an institution. The practice is associated with some important human rights gains, including Brown v Board of Education and Roe v Wade, that have normally made it venerated among American liberals. But this kind of outcomes-oriented case doesn’t withstand a ton of scrutiny. After all, almost 100 years before the Supreme Court helped lead the civil rights revolution it was the Supreme Court that invalidated 19th century civil rights law. So I’m glad to see Dahlia Lithwick putting this issue on the table and discussing Jeremy Waldron’s case against judicial review.
That said, I’m not actually sure that the Affordable Care Act legislation that she’s uses as her example to kick the discussion off really illustrates the point very well. At the end of the day, the only reason the ACA legislation is even a little bit interesting is that the congressional coalition behind the ACA lost so many seats. If the votes for ACA were still there in congress, then an adverse ruling on the individual mandate would be irrelevant—it would be simple to do a patch that accomplishes the same thing as the mandate without specifically triggering the red herring objection about “regulating inactivity.” The problem is that the votes wouldn’t be there. And if you look at the most plausible alternatives to the American system, you’d be looking at something like Canada’s “notwithstanding” clause that allows a legislative majority to overrule a judicial decision. But the political support to invoke such a clause wouldn’t exist today were the law struck down.
More generally, I think the biggest element of the American political system that hyper-empowers judges actually isn’t our unusually strong judicial review, it’s our unusually cumbersome legislative process. If the Supreme Court strikes down the prevailing statute that attempts to limit corporate influence over elections, we don’t just pass a new law that steers clear of the constitutional issues they raised. We do nothing. And if the Supreme Court issues an interpretation of a statute that makes it extremely difficult for people to in practice enforce their rights, we don’t pass a new law clarifying the rules. We do nothing. That’s because we live in a country whose political system is overwhelmingly biased toward inaction. That, in turn, winds up making every judicial decision higher-stakes than it should be.