An Elementary Defense of Judicial Majoritarianism

In this Response Note to Jeremy Waldron's The Core of the Case Against Judicial Review, the Authors defend judicial majoritarianism, which is the use of majority decisionmaking among judicial officers who possess the power of judicial review. In defending judicial majoritrianism, the Authors contend that Professor Waldron's arguments against majoritarian decisionmaking merely reassert traditional arguments against judicial review rather than adding any new ideas to the debate.

The Authors first dispel the notion that judicial majoritarianism makes courts comparable to legislative bodies, arguing that courts use majoritarian decisionmaking to maximize the chances of reaching the right answer, while legislatures use the majoritarian process to express the wishes of the people. Next, the Authors offer defenses of judicial majoritarianism that comport with both the instrumentalist and non-instrumentalist approaches to judicial review. In offering these defenses, the Authors point out that the focus of the dialectic shifts back to the original arguments against judicial review.