Judicial review is increasingly prevalent in modern democratic government. Yet with unelected judges reviewing – and potentially overturning – the work of the people's representatives, it also has long been, in Justice Oliver Wendell Holmes' words, ‘the gravest and most delicate' task that courts undertake. This book establishes a framework to consider the value of judicial review in modern democracy, grouping answers to this question into one of three main arguments, or ‘visions' for judicial review: legalist; rights-protecting; and majoritarian. The strength of these visions is then tested with an original dataset of constitutional court outcomes from four European courts – Poland, Slovenia, the Czech Republic, and Latvia – to determine whether any vision meets its promise. In fact, there is surprising support for the potentially majoritarian benefits of judicial review – a finding that challenges much of our existing theory regarding the value of the courts in modern democracy.
List of Figures and Tables vii
List of Abbreviations ix
Chapter One – Introduction: Constitutional Review in Democratic Government 1
Chapter Two – Majoritarian or Counter-Majoritarian? Visions for Judicial Review 15
Chapter Three – Background: Constitutional Courts in Eastern Europe 49
Chapter Four – Beginnings: Majoritarianism and Rights Protection 65
Chapter Five – The Public Will? Testing a Majoritarian Vision of Judicial Review 87
Chapter Six – Institutional Incentives and the Choices Judges Make:Career-Oriented Judging 109
Chapter Seven – The Use of Precedent in Constitutional Courts:Legalism in Action? 129
Conclusion – The Visions of Judicial Review Considered 147
"Judicial review is increasingly prevalent in modern democratic government. Yet with unelected judges reviewing – and potentially overturning – the work of the people’s representatives, it also has long been, in Justice Oliver Wendell Holmes’ words, ‘the gravest and most delicate’ task that courts undertake. '...provides new theoretical and empirical insight into comparative courts and judging, particularly in Central and Eastern European democracies."