Judicial review is typically conceived as a zero-sum game between judges and legislatures. Legislatures enact laws, and judges strike them down. Use of the judicial veto can only deny legislators of the laws they want. This, the canonical “separation-of-powers” view of the relationship between courts and legislatures, is true enough much of the time. But it’s not always true. The judicial veto can also, at times, accomplish legislative purposes in a more-efficient manner than the legislature can achieve them itself.
Americans in general think constitutional review of legislation in an entirely aprioristic fashion; as wholly a matter of applying abstract principle and never as a matter of assessing empirical conditions. And decisions often are seemingly based on aprioristic commitments. Indeed, the U.S. Supreme Court’s modern 14th Amendment jurisprudence has proven controversial because the Court’s majorities so often appears simply to prefer their naked policy judgments over those of the legislature that enacted the challenged law.
Yet it’s a mistake to boil down every judicial decision to aprioristic judgment. Indeed, much of the reason the doctrine of economic substantive due process received criticism for legal “indeterminacy” occurred because critics thought the Court to be applying a priori principles (“freedom of contract”) when it was in fact basing decisions on more-contingent, empirical judgments.
Even in Lochner the Court did not hold that liberty of contract was inviolable. The question was whether New York state’s imposition on freedom of contract was “reasonable” or not, and reasonability was a matter of empirical determination. That is, a judgment of whether the facts, the empirical reality, supported the legislature’s judgment. The empirical determination sat at the center of the Court’s judgment. As the majority opinion stated:
[The] mere assertion that the subject relates though but in a remote degree to the public health does not necessarily render the enactment valid. . . . In looking through statistics regarding all trades and occupations, it may be true that the trade of a baker does not appear as healthy as some other trades, and is also vastly more healthy than still others. . . . There must be more than the mere fact of the possible existence of some small amount of unhealthiness to warrant legislative interference with liberty. . . . [T]here must be some fair ground, reasonable in and of itself, to say that there is material danger to the public health or to the health of the employees, if the hours of labor are not curtailed.
While Lochner is notorious, it is often forgotten the Court upheld more laws than it struck down when reviewing laws challenged as violations of substantive due process. The “indeterminacy” criticism of Lochnerian jurisprudence resulted largely because the Court made determinations based on reviewing empirical judgments underlying legislation and regulations. Whether a law “reasonably” imposed on liberty was a matter of contingent empirical circumstances, not a priori principle.
To be sure, many critics would respond that the empirical bases for legislation are solely a matter for legislative decision; it is an intrusion on the legislative task for courts to involve themselves with adjudicating rival empirical claims.
Of course, courts regularly pass on empirical matters. Just think of well-known standards of proof such as “by a preponderance of the evidence” or “beyond a reasonable doubt.” More generally, however, it is here that we see judicial review of the empirical bases for legislation providing unique value to the legislative task.
The nature of the information provided to courts differs qualitatively from the information considered by legislatures, and necessarily so.
First and foremost, temporally, judicial determinations almost always occur after the enactment of legislation. The impact of legislation can be more definitively observed when legislation is implemented than when legislation is proposed. As Hans Linde observed in a 1976 law review article, prior to a law’s enactment, “the lawmaking hypothesis … deals with prediction, with causes and effects in the world of physical and social reality.” Similarly, a student Note in the Harvard Law Review observed that courts can serve as agencies “of sober thought which review in the light of experience under the statute the determination of policy made by the legislature and executive at a time when the effects of the statute could only be predicted.”
Indeed, judicial standing and ripeness doctrines induce this type of concrete information in litigation, they require actual or imminent injury for litigation, not the mere prediction of future harm.
Secondly, the nature of the legislation invites legislators to focus on general, or average, results. Judicial process acquires a different type of evidence, that pertaining to specific individuals. Legislation focuses on classifying groups; litigation focuses on how reasonably those classifications fit with individual members of the population. Again, a complementary function.
Finally, courts below the level of the Supreme Court hear cases asserted by litigants as a matter of right, while legislative jurisdiction is purely a matter of discretion. Even if facts educing a law’s failure are known to legislators subsequent to enactment, legislation, including repealing legislation, is a collective action. To enact or to repeal legislation some legislators need to take up the mantle and persuade other legislators to take collective action. Judges don’t face the collective action problem, and the parties themselves receive judicial attention as a matter of right, and both sides are motivated to provide pertinent information to the court.
If the outcome of legislation turns out differently of what a legislature anticipated, judicial review can provide legislators with an efficient means of legislative brush clearing, perhaps taking action it might takes years for the legislature itself to take, if ever.
This is not at all to deny the existence of a zero-sum game in many instances of judicial-legislative interaction in separation-of-power systems. It is only to observe that the separation-of-powers game is not always a zero-sum process. Even the judicial veto itself, the epitome of judicial naysaying to the legislature, can actually to promote legislative objectives rather than merely stymie them.