The Politics of Judicial Review

I. Introduction In the legal academy, scholarship about judicial review is predominantly normative. It is largely about how judges should decide cases1 and what posture they ought to take toward the work of other institutions.2 This normative focus on the behavior of judges is common irrespective of whether the intended audience is other academics, political officials, or judges themselves. Outside the legal academy, the interest in how judges behave is more "positive." That is to say, the focus in other disciplines is not so much on how judges should behave, as on how they do and why.3 Positive theorists ask what motivates judges to decide cases as they do and what forces are likely to influence judges' decisions. The normative and positive projects have traveled on largely separate tracks, in part because the forces positive theorists identify as influencing judges commonly are political ones. "Politics" is used here in a fairly capacious sense, referring to any influences on a judge's resolution of a case other than an independent judgment of the law as applied to the facts before the court.4 But the political forces identified by positive scholars are often quite base: Many positive theorists suggest that judicial ideology plays a significant role in how judges decide cases5 and that judges respond to pressures from other political actors.6 Positive scholars believe these forces play a large hand in shaping the content of the law, especially constitutional law. Normative theorists resist the positive project, in large part because political influence of this sort is anathema to prevailing conceptions regarding judicial review.7 Throughout history, and particularly in the last century, the dominant strain of thought in the legal academy has insisted upon theories of judicial review that maintain the separation of constitutional law from politics.8 It is difficult to overstate the force of this ideal, which animates some of our most cherished conceptions-such as judicial independence-and gives rise to some of our most enduring puzzles-such as reconciling the role of a constitutional judge with the practice of democracy.9 Constitutional theory is all about cabining law from politics, both to ensure that judges are constrained by law (and thus do not simply vote their own values) and to prevent politics from influencing law.10 Despite signs that the project of positive scholars is finally finding a warmer reception in the legal academy, the integration of constitutional law and politics remains quite tentative.11 To be sure, some early, important work in the application of positive political theory to legal institutions actually had root in the legal academy,12 and there is a growing niche of legal academics producing quite interesting scholarship at the juncture of constitutional law and positive theory.13 Yet much, if not most, normative constitutional theory-and certainly theory about judicial review-still fails to come to grips with the lessons of positive scholarship.14 Old habits die hard. The thesis of this Article is that normative constitutional theory about judicial review will remain impoverished until it fully embraces the positive project. In pursuing the ideal, normative theorists typically sideline the sort of political influences discussed here.15 For example, in writing about what might be normative theory's most famous constitutional judge, Hercules, Ronald Dworkin recognizes the very practical problems the real-world judge faces, such as the need to obtain the agreement of other colleagues on the Supreme Court or to ensure the implementation of judicial decrees by other governmental actors.16 Yet, Dworkin expressly puts these problems to one side so that Hercules will be "free to concentrate on the issues of principle."17 Granting considerations of principle all the due they properly are owed, it nonetheless is the case that many of the institutional constraints Hercules faces are fixed aspects of our constitutional system that Hercules himself has no choice but to heed. …