RESPONSIVE JUDICIAL REVIEW: DEMOCRACY AND DYSFUNCTION IN THE MODERN AGE, by Rosalind Dixon. Oxford University Press, 2023. pp. 295. Cloth $105.00. ISBN: 978-0-19-286577-9.
Reviewed by: Mark Rush. Department of Politics. Washington and Lee University. Email: rushm@wlu.edu.
In Responsive Judicial Review, Rosalind Dixon seeks to re-establish or, at least, re-strengthen, the case for judicial activism and review. In so doing, she takes the reader on a tightly but elegantly argued story that addresses arguments against judicial activism, the role of courts in a democracy, and the uncertainty posed by contemporary debates about whether democracy is backsliding or evolving (Carothers and Press; Cianetti and Hanley). She weaves her narrative by drawing upon the vision of a representation-enforcing judicial review set forth by John Hart Ely. She sees this role as one that best manages the countermajoritarian tension that inheres in judicial review. Yet, her vision is grounded on the premise that democracy is now manifesting myriad symptoms of dysfunction. As a result, she regards the judiciary as perhaps the one institution that can perhaps diagnose and respond to the causes of that dysfunction. Thus, she seeks to design a “responsive” theory of judicial review that is informed by “a concern about the degree to which, absent judicial intervention, various sources of democratic dysfunction are likely to be reversible by future legislative or executive action” (p. 6).
Yet, courts must remedy democratic dysfunction while preserving the dynamism and responsiveness in the other branches of government. In this respect, Dixon sets a perilous course between the Scylla of debilitating democracy as a result of too much reliance on judicial remedies and the Charybdis of letting dysfunctional democracy careen towards a dystopian post-liberal or post-democratic alternative.
In this spirit, Dixon calls upon Ely’s spirit in order to update it.
As constitutional scholars in the 2020s, the challenge we face is to do justice to the intellectual inheritance Ely has given us, but in a way that is fit for purpose in a truly globalized constitutional universe, where the threats to democracy are manifold and increasing by the day. In doing so, our task is also to develop a theory of judicial review that responds to both the promise of courts as potential guardians of democracy and democratic values, and the inevitable limits on courts’ capacity and legitimacy in performing this role (p. 15).With this statement, Dixon essentially offers the reader two books. One is on the role of courts in a democracy; the other is a book about what democracy is and how it is evolving. Dixon therefore offers an important opportunity to update Ely’s American-centered vision and theory of judicial review. Yet, by acknowledging the need to address the role of courts in a correspondingly broader, more global, and evolving notion of democracy, Dixon demonstrates that her task is quite challenging. To the extent that democracy is that much more complex than the vision underpinning Ely’s analysis, and to the extent that democracy is an increasingly contested concept, divining a role for courts and judicial review is that much more of a challenge. Yet, she meets it with great success.
Yet, in the end, I think Dixon leaves the reader with more questions than answers. Responsive Judicial Review is a tour de force of comparative, classic, and contemporary scholarship on judicial review and the role of courts in a democracy. She offers thoughtful analyses of the countermajoritarian problem posed by judicial review and the increasingly complex debates about what democracy is and is not (Schmitter and Karl). To bolster her analysis, she draws upon court decisions in India, South Africa, Canada, and the United States that address questions of free speech, reproductive rights, identity politics, and unconstitutional constitutional amendments. But, as I note below, I think the challenges posed by the evolving nature of democracy render her argument a bit inconclusive. This is not a reflection on the nature of her analysis. Instead, it reflects a truth that she incorporates into it: the changing nature and understanding about what democracy is and can be one’s capacity to set forth a clear role for the courts. Regardless, Responsive Judicial Review belongs on the real or electronic bookshelf of any scholar or student seeking a thorough, wide-ranging review of contemporary scholarship on the courts.
I raise two concerns at the outset to provide a context for my remarks. First, any analysis of the role of the judiciary must address two aspects of judicial power. One concerns the capacity and power of courts to mandate change. This concerns more than questions about whether the hope that courts really can bring about social change is, as Gerald Rosenberg argues, “hollow.” At the end of the day, the judiciary shares power with the elected branches and the bureaucracy in any system of government. As Montesquieu and Publius tell us, this is necessary to avoid the one precondition of tyranny: the concentration of power in one branch of government. Dixon addresses this at the end of the book when she calls upon courts to be conscious of the manner in which they render decisions and to advocate a weakened sense of judicial review. This will minimize the likelihood of backlash against an apparently intrusive judiciary. So, in the end, the power of the judiciary depends on the support—or, at least, acquiescence, of the rest of the government. To wit: in the United States, the courts did not desegregate Little Rock; the military did.
A second concern addresses the nature of “the” judiciary. Dixon casts her analysis in terms of a dichotomous battle between “the” judiciary and the rest of the government. Yet, courts are plural, hierarchical entities. For many, the “most supreme” court they will encounter in life will be far from the pinnacle of the judicial hierarchy. As well, if cases do not make it to the top of the judicial hierarchy, then “the law” will have more than one meaning. Accordingly, the interaction between the judiciary and the other branches takes place on multiple playing fields. Decisions of any one court or even the highest court may still beget delays and (as she discusses) backlash as partisans seek to re-litigate disputes. As a result, while a responsive approach to judicial review may recalibrate the balance of power and perhaps decrease the tension between the judiciary and the other branches of a government, it won’t necessarily lead to the settling of more questions about rights and law. While courts can step into and participate in debates about rights, law, and policies, they cannot end those debates unless a society reaches an accord on its own terms.
To set forth her argument for responsive judicial review, Dixon first addresses the evolution of the notion of democracy. With regard to the scope and definition of “democracy,” Dixon states that in the 21st century, “Ely’s account of [democratic] erosion or degradation is too narrow in a variety of ways” (pp. 57-58), This is due, essentially to a broader, comparative understanding of democracy and how it can malfunction. As she notes:
Any contemporary account of judicial representation-reinforcement must be both broader and more qualified than that offered by Ely himself: it must combine thin and thick understandings of democracy, acknowledge the inevitability of disagreement about the precise scope of these understandings and take a broad view of ways in which democratic commitments of this kind may be threatened in a contemporary, comparative setting. (55)The threats fall into two broad categories.
● Antidemocratic monopoly power that entails either executive aggrandizement through insulation from processes (elections, etc.) of accountability or the capture of the bureaucracy.
● Democratic blind spots in the adoption of democratic legislation or burdens of inertia that result in legislative unresponsiveness to popular demands or needs and a failure “to reflect the full range of experiences and perspectives of those subject to the law” (p. 83).
As well, the latter may lead to populist uprisings that seem to feed and/or enable the former.
[W]ithout responsiveness, democracies become vulnerable to a high risk of erosion. Conversely, responsive democracies are capable of realizing both think and thick versions of commitment to self-government. The question, then is how constitutions can be designed and interpreted as to promote this form of responsiveness. (p. 91 italics added)Within the context of this charge, she acknowledges the limits of the judicial role. Judges may “overestimate risks to competitive democracy” and they may “misjudge the evolution of democratic majority opinion or the degree to which giving additional protections to constitutional rights may be compatible with the achievement of certain legislative objectives” (9). With this in mind, she acknowledges that judicial hubris may result in democratic backlash or democratic debilitation in response (p. 9).
She thoughtfully casts the debate about the judicial role in an important, dispassionate perspective. Courts have no particular basis for claiming supremacy at resolving rights disputes. In fact, stepping in to resolve them is simply stepping in to choose which party to a dispute has a more convincing argument on a particular day in a particular case. Imposing one vision of a dispute on a riven society essentially subverts the democratic process (see her discussion, e.g., of Waldron at 43-46) by prematurely pretending to “resolve” a dispute when, in fact, all a court can hope to do is manage one.
To defuse the countermajoritarian tension that arises from judicial review and enhance the judiciary’s capacity to check and balance the elected branches, Dixon calls upon courts to focus on maintaining the “democratic minimum core” of rights and liberties and treading more carefully when engaging in disputes over “thicker aspects of democracy.” The former entails, in broad strokes, free and fair elections, freedom of expression, freedom of assembly, checks and balances, and access to an independent judiciary (p. 63). The latter entails grounding government in “norms of equality, freedom, and dignity, or norms of equal respect and concern among citizens” (Ibid). To engage successfully in judicial review, Dixon calls upon courts to look carefully when choosing which member will deliver an opinion. To disagree with the legislature (or the challenger) in measured terms, and “assure losing parties, and those more broadly disappointed by a decision, that their arguments and concerns have been heard and treated with respect” (p. 247).
Dixon’s assessments and arguments are quite persuasive and absolutely reasonable. But, I don’t think she adequately answers the reasonable response to her analysis: why trust courts more than the other branches? Invariably, courts will suffer from a lack of access to information that legislatures can overcome through committee hearings, etc. Courts depend on the partisan arguments set forth in briefs from the parties contesting a case. Dixon acknowledges this (144). To bolster their justification for challenging the legislature, Dixon suggests that courts can draw upon public opinion (see e.g., the discussion of the Carhart decision, pp. 106-107; p. 144) as well as research into the rights or policies at issue in any given case.
I wonder, though, whether this would diminish the likelihood of legislative backlash. First, there may be good reason for a legislature not to follow public opinion right away or, perhaps, look to lead it in a different direction. Should the public disagree, it can remove the legislature through elections. Insofar as government by public opinion is not a formula for accountable government (who is accountable in a referendum?), I think that judicial reliance on it would simply exacerbate tensions with the legislature. As an example, in Vriend v. Alberta, the Supreme Court of Canada “read substance in” to the Alberta human rights code to expand its coverage to include sexual orientation. The legislature had the option to invoke S.33 but chose not to. So, the “amended” law stood.
One wonders whether this was not actually the outcome the Alberta legislature wanted. Perhaps, by letting the Supreme Court read in, the legislature could achieve its outcome and avoid accountability by blaming the court. In contrast, one could cite the United States Supreme Court’s decision in Dobbs where it struck down Roe v. Wade in part because it said that public opinion in the USA was clearly still divided on the question and, therefore, the court should not impose a “solution” on a divided populace. The different reactions on a state-by-state basis confirm the court’s observation. (As Yascha Mounk notes, undemocratically imposed liberalism is as troublesome as illiberal democracy.) In essence, the United States court told the elected branches to do their job. Thus, judicial reliance on public opinion can favor or disfavor the expansion of the definition of a right.
With regard to the challenge of relying on obviously biased information presented in briefs (p. 144), Dixon’s suggestion that courts can undertake additional homework makes sense in the abstract. But, practically, one wonders whether this can be overcome in judicial systems that are inevitably hierarchical and pyramidal. Judicial dockets are already backlogged enough. Slowing the review process further to do enhanced background research would cause the process to grind even more slowly.
Dixon is no one’s Pollyanna. She takes pains to address such practicalities throughout. A particularly enlightening one concerns a thicker aspect of democracy. In the Grootboom decision, the South African court asserted that the government was bound to take “reasonable measures toward the progressive realization of rights of access to housing and healthcare.” Dixon said the case manifested the challenges of democratic blind spots and legislative inertia (p. 117). But the realities of the political process explain why and even a willing government could fall far short of the number of housing units it committed to build.
This thick vision of rights poses a special challenge both to responsive judicial review and visions of democratic evolution in general. In short, there simply may not be sufficient resources available to promote what are essentially positive visions of rights. Frederick Schauer (2020) addressed this thoughtfully in his essay on how Charlottesville, Virginia responded to the “Unite the Right Rally.” Governments must expend scarce resources to protect individual rights. If a speaker or speakers require extraordinary amounts of protection, or if providing housing for the homeless requires extraordinary expenditure, it may not be possible to protect the thick vision of a right. Accordingly, the terms on which the judiciary engages responsively with the elected branches may become tense not because of a power struggle but because of the realities of the political process. Hence “the degree to which giving additional protections to constitutional rights may be compatible with the achievement of certain legislative objectives” (p. 9) looms as a formidable challenge to judicial review at a time when democracy appears to be backsliding while calls for broader, thicker interpretations of rights are proliferating.
In the 21st century, the arc of democratic development may necessitate the thinning of some individual rights (such as speech or religious freedom) or the evasion of legislative deliberation (through centralized executive action) in order to pursue a common good or public interest such as controlling the spread of deep fake pornography, responding to a pandemic, or managing climate change. This is manifested in, for example, calls for restricting individual speech rights and increasing the surveillance power of government in order to track down the manufacturers of deep fakes (see, e.g., Franks). Ross Mittiga makes similar arguments regarding the centralization of government power in order to protect the general welfare (as manifest in managing climate change in order to perpetuate the human race) precisely from the democratic process. As I write this, the UK has passed a bill that will ban smoking…
Dixon acknowledges that she is venturing into terrain that is dynamic and correspondingly unpredictable. The evolving nature of democracy and liberalism makes it difficult to articulate or rearticulate a clear role for the judiciary. Dixon’s thoughtful analysis and argument are powerful first steps towards what could be a vision of judicial review that will endure the upheavals that seem to characterize the contemporary evolution of or backsliding in democracy. Responsive Judicial Review is, therefore, a powerful, thought-provoking, and not a little risky attempt to see a way through the contemporary crisis of democracy. Readers will find much with which to agree and disagree in Dixon’s analysis. But, I have no doubt that their copies of Responsive Judicial Review will have (virtual or real) broken bindings, dog-eared pages, a plethora of marginal notes, and no shortage of highlighting as readers seize upon the opportunity to enjoy what is certain to be a guidepost for contemporary analysis of judicial review. To paraphrase a quote from an ancient political science meeting at which scholars would visit the primeval “paper room”, the reader could do a lot worse than spending your last buck on Dixon’s book.
CASES:
Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022).
Roe v. Wade, 410 U.S. 113 (1973).
Vriend v. Alberta,1 S.C.R. 493 (1998).
REFERENCES:
Carothers, Thomas and Benjamin Press. 2022. “Understanding and Responding to Global Democratic Backsliding.” Carnegie Endowment for International Peace. Available: https://carnegieendowment.org/2022/10/20/understanding-and-responding-to-global-democratic-backsliding-pub-88173 Last Accessed 29 April 2024.
Cianetti, Licia and Sean Hanley. 2021. “The End of the Backsliding Paradigm.” Journal of Democracy 32: 66-80.
Ely, John. H. 1980. Democracy And Distrust. Cambridge: Harvard University Press.
Franks, Mary Anne. 2019. The Cult Of The Constitution. Stanford: Stanford University Press.
Mittiga, Ross. 2021. “Political Legitimacy, Authoritarianism, and Climate Change.” American Political Science Review: 1-14.
Mounk, Yascha. 2018. The People Vs. Democracy: Why Our Freedom Is In Danger & How To Save It. Cambridge: Harvard University Press.
Schauer, Frederick. 2020. “The Hostile Audience Revisited” in David Pozen. The Perilous Public Square: Structural Threats To Free Expression Today. New York: Columbia University Press.
Schmitter, Philippe and Terry Karl. 1991. “What Democracy is and is Not.” Journal of Democracy 1: 3-16.
© Copyright 2025 by author, Mark Rush.
