Rosalind Dixon has produced a thoughtful book that is certain to provoke discussion about the nature of judicial review in public law. Taking as a starting point the concept of representation reinforcement from the work of John Hart Ely, in which judicial review is defended on the basis of claimed benefits for democracy, Dixon argues in favour of an expansive understanding of the role of courts as, in essence, defenders of democracy. However, although the book is stimulating, there is some difficulty in reconciling this proposed role with courts’ function of interpreting the law and resolving disputes over it. Nor does Dixon’s book grapple sufficiently with the practical problems presented by conceiving of courts in this way.
Ely outlined a “representation-reinforcing theory of judicial review” in his famous work Democracy and Distrust: A Theory of Judicial Review (Harvard 1980). He focused on the democratic objection to judicial review of legislation and aimed to defend the practice – as he put it, “reconciling” such review “with the basic democratic theory of [US] government” (p. 45). Ely’s central claim was that constitutional rights protection by courts can protect political activity and therefore “the proper functioning of the democratic process” (pp. 74, 135–36). One example is protecting rights to political expression and association, while another is the protection of equality, which is said to facilitate representation of minorities. However, Ely’s theory might be viewed as a shaky foundation for further theorising. That is because important rights exist, such as religious freedom, that have only a limited connection to the reinforcement of political representation. Further, the idea that rights need to be useful to such representation to merit judicial protection seems to concede too much to the critics of constitutionalism, since even important human rights might be neglected were this so.
A point of departure for Dixon from Ely is that she is not merely seeking to justify the practice of judicial review because of its claimed benefits for democracy – she is seeking to grant courts a positive role to “identify relevant democratic blockages and determine how and when they can most effectively be countered by judicial intervention” (p. 4). Dixon’s focus is on “three distinct forms of democratic dysfunction”, namely “antidemocratic monopoly power”, “legislative blind spots” and “burdens of inertia” (pp. 2, 65, 80). Democratic responsiveness is said to require a “minimum core” of “free and fair multiparty elections”, “political rights and freedoms” and “a range of institutional checks and balances” (pp. 2–3, 65). According to Dixon, the “underlying logic of judicial review … is … a commitment to representation-reinforcement that involves protecting and promoting the capacity of a democratic system to respond both to minority rights claims and considered majority understandings under a range of real-world, non-ideal conditions” (pp. 3–4). The legitimacy of court decisions is said to rely, in part, on the extent to which courts perform this role: “‘[a]ctivist’ forms of judicial review, for instance, will be more politically legitimate where they respond to irreversible threats to the democratic minimum core or individual dignity” (p. 6). This is described as “responsive” judicial review in the sense that it “highlight[s] the role courts can play in promoting commitments to democratic responsiveness” (p. 6).
Dixon’s book begins in Part I with an outline of what she means by democratic dysfunction (ch. 1), constitutional constructional choice (ch. 2) and the risks of antidemocratic monopoly power, democratic blind spots and burdens of inertia (ch. 3). These chapters are a globetrotting analysis that shows the fruits of wide research and outlines some “malfunctions in constitutional democracies today” (p. 59). In Part II, she discusses how courts may address democratic dysfunction, in terms of doctrine (ch. 4) and effectiveness (ch. 5). This includes some discussion of how structured proportionality and US-style tiered scrutiny can be used (pp. 127–40). In Part III, she addresses courts’ legitimacy (ch. 6) and modes of judicial review (ch. 7). In particular, she suggests that a responsive approach should take into account “the existing degree of institutional capital, or legitimacy, enjoyed by the court” (p. 226) and that “how and when judicial review is weakened will also depend on the nature of the case, and the relevant democratic blockages at stake” (p. 240). In Part IV, she discusses “judicial voice” (ch. 8) and concludes with some reflections on the “global reach” of her argument (ch. 9).
In substance, Dixon calls for the judicial role to extend to safeguarding democracy. Although safeguarding democracy is no doubt a laudable goal, the problem is that, in proposing this role for the courts, there is a tension between it and the usual understanding of the judicial role as being to interpret the law and resolve disputes. Dixon is aware of this. She allows that “democratic representation-reinforcement will not exhaust the scope of courts’ role” and admits that “[t]he foremost responsibility of courts in a democracy is to give effect to legal constraints and requirements. In a constitutional context, this means giving effect to the text of a written constitution” (p. 4). However, describing giving effect to the law as merely courts’ “foremost” responsibility seems surprising. On the usual understanding, it is, in fact, their only one. It is, moreover, easy to imagine that in some circumstances the stronger legal outcome suggested by the constitutional text or structure might be different from that which promotes democracy. For example, if a constitutional provision required the electoral roll to be closed long before an election, this might hinder democracy and yet be legally required.
Dixon attempts to thread this needle by stating that “responsive judicial review” involves courts “giving effect to both the ordinary language of a constitution and a range of constitutional values, including, but not limited to, constitutional democracy” (p. 5). Consideration of democracy arises “only in cases where formal constitutional “modalities”, such as the text, history and structure of a constitution run out – and courts are necessarily required to consider broader constitutional or political values as part of a process of constitutional constructional choice” (p. 5). In this context, it “aims to offer additional guidance for courts in cases in which the scope or priority of relevant constitutional norms is unclear or the subject of reasonable democratic disagreement” (p. 5). Dixon accepts that “democracy is not the only value a constitutional court can, or should, consider in this context: other values include individual freedom, dignity …, formal and substantive equality, and a commitment to the rule of law” (p. 5). Whatever the merits of this description of judicial decision-making in the constitutional context, Dixon’s argument seems to fail to sufficiently appreciate the importance of the content of specific constitutional instruments. The extent to which any specific constitutional instrument enshrines democracy, or indeed, the other values specified, would depend on its text, structure and, potentially, interpretive considerations such as those involving the drafting history and historical context. It is the specific content of a given constitution that courts are expected to interpret and apply, not abstractions about democracy.
In addition to that conceptual challenge, Dixon’s account faces practical difficulties. Courts may lack expertise in democracy and its conditions, since their expertise is in law, not politics – that is their “institutional training and vantage point” (p. 14). Democracy is, after all, complex and Dixon’s analysis of democratic problems cannot hope to provide a foolproof guide to protecting it. Courts are also structurally limited by their nature as courts in their ability to address the workings of a democratic system. Unless they can act of their own motion – which many courts cannot – they are unable to address issues with democracy until someone brings those issues before them. The information they have access to may also be constrained by the rules of evidence, what the parties choose to put before them (especially if the process is adversarial) and the limited scope of the possibility of judicial notice. Indeed, Dixon accepts that “not all courts or judges will be equally well placed or equipped to engage in review” of the kind that she proposes and counsels that they pick their battles (p. 144). Moreover, in practice, determined authoritarian actors have been able to capture courts relatively easily. Since courts hold neither the power of the sword nor of the purse, to paraphrase Alexander Hamilton, it is unrealistic to expect them to be able to repel a concerted authoritarian push, as Dixon seems to acknowledge (p. 10). Conceiving of courts as protectors of democracy faces obvious difficulties under such circumstances. Nor, indeed, is this what courts are designed to do – rather, their role is to resolve legal disputes. Those disputes may include disputes over the meaning of a constitutional instrument, but, properly understood, they do not have any wider role beyond what a constitution says or implies.
Courts can succeed in performing the role of interpreting a constitution only insofar as other constitutional actors respect them and heed their decisions. In asking courts to try to safeguard democracy, Dixon’s approach might undermine, rather than advance, the position of courts. If courts act on the basis of a claimed role as defenders of democracy – instead of focusing on interpreting law and resolving the legal disputes in front of them – they might come to be viewed as political actors, compromising their effectiveness. That is not to say that there are no circumstances in which courts can defensibly respond to politics, but these would turn on the content of the applicable constitutional norms. In particular, it may be relevant to consider the workings of democracy when a democratic system of government is constitutionally prescribed. For example, sections 7 and 24 of the Australian Constitution provide that the Commonwealth House of Representatives and Senate are to be “directly chosen by the people”. As the High Court of Australia has found in cases such as Lange v Australian Broadcasting Corporation (1997) 189 C.L.R. 520, this indicates the need for the existence of democratic elections and their conditions, which can be assessed judicially. Additionally, when a legal concept depends on the presence of democratic features, such as the concept of deference to the elected branches, I have made the argument that courts, if they seek to apply that concept, cannot ignore the political circumstances that inform its applicability (see G. Baldwin, “Same-Sex Marriage in Japan and the Role of Courts in a Dominant Party System” (2024) 2 Comp. Con. Studies 36). However, addressing democratic or political conditions as part of the analysis of a legal concept within a given system is different from courts assuming a responsibility to protect democracy in the abstract.
The other ideas that Dixon employs raise similar concerns about divorcing courts from their role as interpreters of the law. An example is Dixon’s concept of “abusive” judicial review, formulated with David Landau (p. 60). On Dixon’s sense, abusive means, in essence, anti-democratic – threatening a “democratic minimum core” (p. 60). However, a more intuitive understanding of abusive judicial review is that the concept applies when a judicial decision lacks a plausible substantive legal basis or suffers from procedural impropriety – which may happen whether or not it positively affects democracy. Dixon’s analysis also hinges on the idea that the democratic minimum core exists as a “transnational” concept (pp. 60, 62). Although what is required for democracy to operate can indeed be the subject of useful analysis, whether the requirements exist globally is open to question, given local variation. Further, what is a judicially enforceable minimum core for any specific system may be better understood as depending on the text and structure of its constitutional instruments, as well as the content of any unwritten constitutional norms.
A preferable understanding of the relationship between democracy and judicial review is that although many constitutions will protect democracy to some extent – and for courts to interpret and apply what is express or discernible as a constitutional implication in that regard is unobjectionable – courts do not have a role of protecting democracy that is independent of the content of their own system’s constitution. Even court decisions that are anti-democratic can be legally sound, if that is what a constitution provides for. In proposing a larger role for courts, Dixon’s analysis, although animated by admirable democratic sentiments, would run the risk of undermining constitutionalism and impairing the function of courts as interpreters of the law if it were adopted by courts.
