Greg Weiner articulates a compelling argument for judicial deference—all things considered—to the elected branches of government. As he puts it: judges “can avoid decisions because someone else has already made them: elected officials. A reasonably consistent posture of deference to the elected branches . . . serves dual institutional purposes.”
I want to push the tension between principle and deference a bit more than Greg does. On its face, judicial deference offers a modest institutional role for judges. This understanding rests squarely on a view that decisions made by legislative majorities are preferable to unelected judges. It is a powerful take. And right, at least at times. But the Constitution does not rest on a simple understanding of majoritarian democracy. There are times when judges seem uniquely positioned to protect constitutional rights and enforce constitutional limits—and to do so precisely because they are not elected—that go beyond defending their own institutional turf. Voting rights are a classic example. John Hart Ely, who argued that judges should usually defer to the democratic process, thought courts were best situated to reinforce democracy by making certain that the democratic process itself was fair and open. The old line that if you don’t like a law go to the polls not the courts, doesn’t work if the democratic process is closed to you. In such situations, Ely cast the courts as guardians of democracy rather than its foil.
It can also get a bit murky when judging whether the legislature deserves the benefit of the doubt. Laws can often look quite reasonable on their face, even while being constitutionally dubious. Should courts accept the legislature at its word? A number of states are altering their voting laws in the name of election security. An altogether reasonable concern of the legislature. And yet there is almost no evidence that this is a problem. So what if election security is a pretext? What if the real aim of a law is to make it more difficult for racial minorities to vote? Is the sort of judicial scrutiny that might reveal an illicit constitutional purpose warranted?
A final point on this. Those who tend to favor a robust role for the judiciary often turn to an idealized version of judging. It’s no coincidence that Ronald Dworkin famously dubs his ideal judge Hercules. But it’s equally true, and much less often acknowledged, that calls for judicial deference often turn on an idealized view of the democratic nature of legislatures.