This symposium poses a provocative question: Should judges exercising the power of judicial review defer to the political branches as a means of giving voice to the “will of the people”? The inquiry assumes a connection between majority will and the outputs of the political branches—a connection we argue is frayed, at best, in the current political context.
In the first part of this Essay, we highlight how well-known aspects of our political system—ranging from representational distortions in federal and state governments to the relationship between partisan polarization and the behavior of elected officials—call into question whether political outcomes reliably reflect majority preferences.
We then turn to deference. As a normative matter, we argue, the extent of deference need not turn on the majoritarian nature of political outcomes. There are many reasons for deference—as well as many reasons to reject deference in favor of more aggressive judicial review—that have nothing to do with respect for majority will. Yet the relationship between deference and majoritarianism may tell us a great deal about the balance between the judiciary and the rest of government. Historically, our roughly majoritarian system provided mechanisms that helped keep the judiciary roughly in the mainstream of public opinion on issues that were salient over time. There are signs that system may be breaking down. In the second part of this Essay we return to the sources of political dysfunction catalogued earlie and argue that the same forces are leading to an increasingly polarized bench, while weakening the tools the people—acting through their elected representatives—traditionally have used to corral the judiciary.
Barry Friedman & Margaret H. Lemos, Dysfunction, Deference, and Judicial Review, 29 George Mason Law Review 487-508 (2022)
Library of Congress Subject Headings
Judicial review, Political questions and judicial power, Democracy, Deference (Law)