Skepticism About Judicial Review - a Perspective from the United States

Abstract

This essay, to be a chapter in a volume on Skeptical Approaches to Human Rights to be published by Oxford University Press in 2001, provides a summary of the history of judicial review in the United States as the basis for developing a skeptical perspective on the utility of the particular U.S. form of judicial review as a means of protecting fundamental human rights, at least beyond classical liberal, first-generation rights. It identifies a number of features of the U.S. system of judicial review that caution against drawing strong inferences about the utility of entrenching human rights from the U.S. experience, which in many ways arises from the specific institutional form and history of judicial review in the United States. The historical sketch suggests that the Supreme Court's actions have rarely deviated significantly from the positions taken by the political forces controlling the political process, and that when those decisions have deviated from what the political process produces, the decisions' implications for protecting fundamental human rights have frequently been quite ambiguous. The essay concludes with a brief discussion of normative concerns about the U.S. form of judicial review as a means of enforcing entrenched human rights. Drawing on Frank Michelman's argument that the paradox of constitutional democracy can be resolved if the institution enforced entrenched rights is open to what Michelman calls the "full blast" of argument, it argues that the Supreme Court's recent decisions express a more authoritarian sense of the justices' role than is compatible with Michelman's resolution of the paradox of constitutional democracy.