Judges do not treat all constitutional rights the same. U.S. judges typically apply “two-tiered” judicial review when reviewing the constitutionality of legislation. Judges apply some form of heightened scrutiny when reviewing legislation that trenches on fundamental rights, like free speech, or when reviewing legislation directed, in the famous language of Carolene Products footnote 4, at “discrete and insular” minority groups. Judges apply deferential “rationality review” to almost all ordinary, run-of-the-mill socio-economic legislation. The late Gerald Gunther famously quipped that deferential rationality review is deferential in theory but “non-existent in fact,” meaning that judges only very rarely strike down legislation when they apply rationality review. He added that strict scrutiny is strict in theory but “fatal in fact,” meaning that judges rarely uphold the constitutionality of legislation subject to strict scrutiny.
This judicial practice raises at least two puzzles. The first puzzle pertains to what justifies judges in picking and choosing certain rights to privilege over others. This question has spawned a huge literature among legal scholars and political scientists, and, indeed, among judges themselves. What supporters of two-tiered review are at pains to avoid is the seemingly obvious, yet damning, conclusion that two-tiered judicial review exists because judges decided, based on their own political preferences, to allow legislatures freer hands when regulating economic activity than when legislation touches on rights judges consider more important than economic rights.
That’s an important puzzle. So important that it sometimes overshadows a second puzzle, which is why courts ever deferentially review the constitutionality of any legislative enactment? The simple idea being that constitutional designers presumably crafted every provision in a constitution with the expectation that it guide future decision makers, whether allowing the exercise of power or limiting that exercise.
There are numerous arguments advanced to justify judicial deference to ordinary legislative enactments: informational advantages of legislatures over courts, functional arguments that the legislative process works only if judges enforce legislative bargains when the majorities enacting them are no longer in office, that heightened judicial review invites lazy legislating, and others.
Perhaps the best-known argument for judicial deference to the constitutionality of legislative enactments, an argument heard from both the political left and from the political right (depending on whose ox is getting gored), is that, in republican political systems, unelected parts of the government should defer to elected parts of the government. So judges should defer to legislators.
Gerald Gunther summarized the common take on the argument: “[Non-deferential judicial review] allowed unelected, politically unaccountable judges to decide whether a particular legislative purpose was or was not legitimate. Courts [are] not super-legislatures: they exceeded their legitimate powers unless they deferred to elected legislatures on debatable issues.”
While an oft-repeated justification for judicial deference, I think there are weaknesses to the argument that the non- republican character of the judiciary requires courts to review ordinary legislation deferentially.
First, there is the implicit assumption in the argument that judges in the U.S. lack the republican bona fides of legislators. This assumption would have surprised the Constitution’s framers, who nonetheless considered unelected judges as fully republican creatures. James Madison observed in The Federalist #39,
[W]e may define a republic to be . . . a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. . . . It is sufficient for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified . . . On comparing the Constitution planned by the convention with the standard here fixed, we perceive at once that it is, in the most rigid sense, conformable to it.
The argument here, however, relies on more than mere formalism. The purpose of immunizing judges from electoral pressures is to make courts a better republican institution. The goal is not to make them non-republican institutions. Even the most ardent democrat admits the distinction between short-term preferences and long-run interests. Protecting the people in general from legislative overreach, and protecting minorities from majoritarian overreach (which logically extends to protecting economic minorities as well as other classes of minorities), are republican-enhancing roles of the judiciary, not republican-detracting roles.
There is profound irony in the argument that judiciaries in republican polities should defer to legislatures because of the countermajoritarian task of courts. I made the point in a book chapter a few years ago:
[T]he articulated purpose of immunizing judges from direct electoral pressures is precisely to free them to apply their best independent judgment when reviewing legislation. If that is true, it critically undermines the argument that judges should defer to the democratic branches of government. It makes no sense to immunize judges from direct electoral pressures in order to encourage them to exercise their independent judgment when reviewing legislation, and then turn around and argue that because they are immune from direct electoral pressures, they therefore should not employ their best independent judgment when reviewing legislation but should instead defer to the legislature’s policy judgment because legislators are elected.
Finally, there is an irony in arguments about judicial deference being obsessively focused on the national government’s judiciary. Most judicial action in the U.S. occur in state courts. Of the fifty state judiciaries, some forty-three have some sort of elections associated with their judiciaries, either through direct election of at least some of their judges or through retention elections. Nonetheless, state courts generally followed the national judiciary in adopting deferential rationality review when reviewing ordinary socio-economic legislation.
It should go without saying, but apparently doesn’t, that when voters vote on judges as well as on legislators, arguments about the need of “unelected” judges to defer to elected legislators are inapplicable. The observation, however, presses the puzzle: Given that most state-level judges apply the same deferential behavior toward legislation, despite judicial elections, that national-level judges do while not having judicial election, suggests that, in actuality, the fact of judicial deference must rely on something other than the absence of those elections to justify the deference.
To be sure, there are other arguments forwarded to justify judicial deference. Nonetheless, the ostensibly countermajoritarian nature of the judiciary is one of the most oft-used arguments, and an argument employed on both sides of the political spectrum. Despite its popularity, it has serious weaknesses. Those weaknesses suggest something else must be motivating deferential judicial behavior beyond institutional humility of unelected judges toward elected branches of the government.