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Deliberative Democracy and the Institutions of Judicial Review

James A. Gardner reviews Christopher F. Zurn’s book, Deliberative Democracy and the Institutions of Judicial Review. Below is an excerpt from Law & Politics Book Review:

In the forty-five years since Alexander Bickel branded US courts “countermajoritarian,” a thriving academic industry has pondered the “legitimacy” of judicial review, the practice whereby appointed judges possess final authority to evaluate the constitutionality of actions taken by democratically elected officials. Questions about the legitimacy of judicial review can be raised in one of two very different senses. In one sense, such questions ask whether judicial review is a normatively desirable institution as judged against some extraconstitutional standard of institutional merit, often a democratic one. In a trickier, internal sense, questions about the legitimacy of judicial review ask whether courts have maintained fidelity to the constitution in the actual practice of judicial review. In the first sense, the issue is whether judicial review should or should not be incorporated into some constitutional system. In the second sense, judicial review is accepted as a constitutional fact, and the issue is whether courts are doing it properly. In the first sense, the legitimacy of judicial review is a question of sound institutional design; in the second sense, it is a question of how judges ought to practice their craft.

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