Political Malfunction and Weak Review: Blind Spots and Burdens of Inertia

Already in her earlier work (The Core Case for Weak Form Judicial Review, Cardozo Law Review 2017), Rosalind Dixon has argued that weak form judicial review can help counter blockages in the legislative process—such as legislative “blind spots” and “burdens of inertia”—that can otherwise impair the enjoyment of individual rights even of a kind recognized by democratic majorities. This, she has suggested, provides an important, if contingent, outcome-based case in favor of courts exercising powers of weak-form review. The case for weak judicial review of this kind may be combined with a theoretical case for strong, or even super-strong, judicial review in more pathological democratic cases, and must ultimately be assessed based on the actual history and practice of legislative and judicial constitutionalism in a particular country.