A 'political constitutionalist' case for judicial review

This paper argues for judicial review – or against the rigidity of political constitutionalists’ objections to judicial review – on the basis of what is argued to be its ‘legitimating rather than its epistemic properties’. That is, this case focuses on certain features of the practice of adjudication rather than on supposed ‘epistemic virtues’ of judges of the kind used in standard legal constitutionalist defences. These features – which include things like its attentiveness to individual grievances and its rule interpretation competence – suggest that judicial review is likely to or may contribute, in certain modest ways, to the promotion of norms that are ‘commonly avowable’ in democratic societies (in Philip Pettit's republican sense of that idea). This in turn means that, when suitably informed by doctrines of deference and restraint (as per Jeff King's thesis), it is likely to or may enhance the legitimacy of political outcomes over time.