Among the most prominent objections to judicial review (JR) is that it is undemocratic. Critics complain that an unelected judiciary has no business nullifying the will of a majority of the people, or their delegates, unless the law clearly demands it.
The theoretical relationship between democracy and JR has a long history, for one of its most prominent defenses is on democratic grounds. Alexander Hamilton’s defense in Federalist No. 78, and Justice Marshall’s defense in Marbury take this cast: JR is a mechanism for the defense of the higher law, which has a stronger democratic pedigree than the statutory law. The former is made by the people themselves; the latter, made only by the people’s delegates.
But this argument only establishes JR as a feature of constitutional governance; it does not say enough about the legitimate extent of its use. Critics still charge that “activist” judges substitute the Constitution’s meaning for their own, and that if there is any question as to whether a law or policy is consistent with the higher law, judges ought to defer to the judgment of the elected branches.
There is, in spite of arguments like Hamilton and Marshall’s, a lasting tension between common conceptions of democracy and JR. Here I propose a different defense of JR on democratic grounds. This defense is rooted in a conception of democracy that emphasizes how power is distributed among its constituent persons. A democracy is committed in principle, prior to institutional arrangements, to an equal distribution of power among its members. Taking a capacious understanding of power, I then argue that inasmuch as JR preserves this equal distribution, it cannot be considered undemocratic, even if it is used to frustrate majority will or elected institutional outputs. By moving behind institutions to the essential features of a self-governing polity, we might dissolve this longstanding tension.