A Critique of ‘Citizens in Robes’

Lafont argues that judicial review of primary legislation is one valuable means for citizens to participate in constitutional decision-making. By allowing minorities to challenge majoritarian legislative decisions, judicial review enables citizens to exercise their democratic right to partake in the determination of the meaning of the laws. The resulting picture, Lafont claims, is better than its alternative, for judicial review spares us from what would otherwise be a system of government where a large number of citizens blindly defer to the law. I want to challenge this argument. Even if it was empirically clear that the judicial pathway poses less challenges to the political equality of citizens than the legislative one, the advantages on which Lafont grounds her justification of judicial supremacy are not features of judicial supremacy but of the ordinary functioning of law. It is often overlooked how case-law, rules of statutory or common law reasoning and the establishment and reversal of precedent are tools already in place to do the up-dating, participatory work that Lafont wants judicial review to enable. The question of institutional design that seems at stake, and remains to be addressed in the book, is who ought to ultimately defer (majorities or minorities) and why deference to legislative or judicial decisions should be regarded as ‘blind’ in one case but not in the other.