Can Rights-based Judicial Review be Justified? Flashcards
What does Eisgruber regard Supreme Courts as
a representative institution which is well constituted to speak on people’s behalf on matters of principle
What conception of democracy does Eisgruber argue for
Democracy should be impartial therefore it should respond to interests and opinoins of all people rather than serving majority or fraction of people
According to Eisgruber what does court serve
Court serves democratic values rather than oppose them
what is JR usually regarded as
Constrains people from acting on their own judgment
if constitution authorises its citizens to choose among competing conceptions of equal protection and executive power yet unelected judges are making these choices
peopel disagree about
give example
what justice requires and what rights individuals should have
e.g. some people believe unjust for gov to ban abortion, others believe it is unjust to permit
The two conventional defences of judicial review run into trouble b/c they both
presume that only the legislature can speak on behalf of a democratic people and JR constrains legislature’s power
The two conventional defences of judicial review run into trouble b/c they both
presume that only the legislature can speak on behalf of a democratic people and JR constrains legislature’s power
What does Eisburgen argue and how does JR fit
Eisburgen argues that democracy i.e. government by the people is not limited to government by the legislature
Supreme court/judicial review is a democration institution. JR is an institutional mechanism for implementing a complex, non-majoritarian understanding of democracy
How may legislature not represent electoral majorities?
Decisions influenced by interest groups, lobbyists, news media even though legislature uses majoritarian voting rules
Even if legislature is faitful to electoral majorities, how does it represent the people poorly?
- Majority is not the same as the whole
- Electorate is not the same as people
Is the best institution to represent people majority or minority rule?
Majority is more democratic than minority rule but not always the best institution to represent people
where might we see minority rule
in countries that allow their officials to choose their own successors or watch powerful military faction fight for control of gov
In this situation, class of nobles of powerful army generals will rule for their own benefit according to their ideas about justice and morality
Why are people not the same as the electorate?
electorate made up of voters and voters does not equal individuals or persons because when individual take on the office of a voter, they have little incentive to take their responsibility seriously b/c
- Each individual vote will have no impact on the outcome of the election
- Choose among limited set of options, no reasons, anonymous
because people are not the same as electorates, we should not presume
that the best representatives of people are those most repsonsive to electoral majorities.
many if not all Constitution’s abstract provisions share an important feature that is
they refer to or directly implicate moral issues
the constitution’s most significant rights protecting provisions are drafted with explicit reference to freedom, equality and other moral ideas
Democratic gov should aspire to be
impartial rather than majoritarian. should respond to interests and opinons of all people, not merelly seriving the majority or other fraction
Describe how it is not easy for democratic gov to speak about contested values
policy between majority and minority on abortion.
cannot share on majority and minority positions on a moral question.
What is the agreement (shared sense) beneath moral dispute (e.g. abortion)
- morality is different from mere preferences and interest
- should have moral reasons to back up moral positions
- good faith moral discussion tends to improve the quality of moral reasons and moral positions we adopt
How can gov rule impartially on moral disputes?
firstly
- respect people’s belief that moral reasons is different from self interested reasons.
* gov should resolve moral issues from reasons of moral principle rather than self interest
How can gov rule impartially on moral disputes?
second
- gov must respect people’s conviction that sustained public deliberation helps moral opinoin to converge upon new and better positions
How can gov rule impartially on moral disputes?
second
expand
ensure its vision of justice has popular appeal and reflect benefits of public discussion rather than idosyntric whims of few privileged DM
How can gov rule impartially on moral disputes?
Every citizen who disagrees with a particular result
can still believe that the decision was a result of government’s good faith to pursue project which should in the long run lead to adopt principles that are valid according to her own criteria
How can gov rule impartially on moral disputes?
what does committed, rational discussion lead to?
moral improvement over the long haul
How can gov rule impartially on moral disputes?
since committed, rational discussion lead to improvement over the long haul, what may the disappointed citizen hope
disapppointed citizen hope that she will be persuaded she is mistaken or gov will change its position
as such democratic gov can construct conception of justice on behalf of differing and disputatious people
A democratic gov must rule impartially. how does gov rule impartially on moral issues
decide issues on the basis of moral reasons that have some popular appeal
Both institutions can speak on the behalf of the people and Eisgruber thinks that sometimes we have reason to think that judges and JR will do this more effectively and accurately than legislature.
firstly
Nothing in their training that gives them more wisdom or insight about what morality requires of us and what rights require of us
democracy requires us assume parity of basic moral judment: all mentally competent adults have equal capacity to tell right from wrong
Both institutions can speak on the behalf of the people and Eisgruber thinks that sometimes we have reason to think that judges and JR will do this more effectively and accurately than legislature.
even if judges are no more virtuous or sightful than ordinary american,
judges are disinterested, they make honest, principled judgment - judgement about what is right and wrong; acting on their own moral convictions
- enjoy tenure and the judicial independence that comes with it compared to politicians who are equally moral and equally insightful but may act for the benefit of career
Defense of politicals fail for 2 reasons
- judges enjoy judicial independence
2.
Judges must take moral responsibility for their decisions b/c their reputation of a fair DM is on the line when they rule
- provide public account of reasons vs voters vote in secret and without explanation
- their vote matters a lot to the outcome of the case vs voters exercise influence in groups so individual vote has no impact on outcome
Democracy
what does democratic theory say about electorates
ask what circumstances voters (the electorate) can adequately represent the people
Democracy
advantage of judge representing people on moral issues vs voters
- tenure (social prestige, comfortable salary)
* - less likely to disregard or distort their moral judgement - Public accountability judges must account for their votes, provide reasons and their votes are decisive they have greater incentive to distinguish moral principle for self interest
- voters are not less insightful than judges but they are less disinterested
*
Democracy
advantage of judge representing people on moral issues vs voters
- tenure (social prestige, comfortable salary)
* - less likely to disregard or distort their moral judgement - Public accountability judges must account for their votes, provide reasons and their votes are decisive they have greater incentive to distinguish moral principle for self interest
- voters are not less insightful than judges but they are less disinterested
*
How does democracy benefit from disinterested judges
Disinterestedness flows from tenure and public accountability
- not perfect but it is substantial enough to give Supreme Court special ability to represent american people re issues of moral and political principle
how is appointment of judges democratic
even though judges are not elected, they are appointed by elected officals
What does Eisgruber propose?
Supreme court can be rearded as a representative institution which is well constituted to speak on people’s behalf about matters of principle
Democracy presuposes
a basic parity of moral judgement, ordinary people have sufficient moral insight to decide questions of justice for themselves
Other reasons why judge might be better to speak on behalf of meal on matters of constitutional principle
Describe the claim that stare decisis improves judicial decision making
less likely to act according to their personal convictions because they need to reconcile their decisions with precedent but Eisenburga says it is mixed that stare decisis explains why judges should speak on behalf of people about justice
Evaluating supreme court as democratic institution
4 crucial features of judicial role in US
1.
judges have life tenure, comfortable salary
Evaluating supreme court as democratic institution
4 crucial features of judicial role in US
2.
judges votes have decisive impact –> incentive to take personal responsibility for their choices
Evaluating supreme court as democratic institution
4 crucial features of judicial role in US
3.
must give a public account of their reasoning –> put reputation for fairness on the line when they issue a decision
Evaluating supreme court as democratic institution
4 crucial features of judicial role in US
4.
judges are appointed b/c of their political views and political connections –> views of justice not radically different from American mainstream
Evaluating supreme court as democratic institution
4 crucial features of judicial role in US
what do first 3 features show
judges will decide moral issues in disinterested manner
Evaluating supreme court as democratic institution
4 crucial features of judicial role in US
last feature
makes it likely that judicial reasoning will converge and be embedded within a larger societal discussion about moral issues.
Evaluating supreme court as democratic institution
4 crucial features of judicial role in US
these 4 combined
make JR a reasonable device for deciding moral issues impartially; for deciding them on the basis of moral reasons that enjoy popular appeal
eisgruber response to JR is undemocratic
Practical form of self determination depend on imperfect institutions
If we don’t have judges, the alternative is imperfect representatives, do worse job than judges
For Eisgruber, JR is not
a consraint of democracy, but a way of implementing it
Eisgruber’s purpose
argue that there are sound, pro-dmocratic reasons for american judges to make controversial value judgments when they interpret the US constitution
What do critics say
undemocratic for unelected judges to make and enforce their independent judgements about controversial political issues
Eisburga concedes at the end of the chapter that
legislators and voters have incentives to behave selfishly but tey sometimes treat moral principles seriously and when they act on behalf of moral objectives, they do so more effectively than courts
Eisburga concedes at the end of the chapter that
when legislators and voters act on behalf of moral objectives, they do so more effectively than courts
how
judges lack expertise and info needed to craft effective social policy.
no guarantee judges will behave disinterestedly
the best forms of democracy will always include
some JR.
Strong JR
What did Eisgrub destabilise the idea
there is a single institution sch as legislature or electorate that is uniquely entitled to speak for the people.
There are wide variety of institutions that are democratically legitimate and pursue democratic flourishing
Although judges themselves are not elected
they are political appointeees. Nominated and confirmed by elected officals
What does life tenure ensure
that judges approach moral issues in a disinterested fashion
Supreme court forms a representative institutions that combines
democratic pedigree + disinterestedness + moral respnosibility .
Judges are representative of the people even tho not elected.
majoritiarian
government by majority of people/in accordance with majority’s wishes, comes close to idea of “government by and for the people”
How does Eisgruber’s argument differ from Waldron and John Ely
- rejects the assumption underlying the counter-majoritarian difficulty, namely, that JR is an unrepresentative institution and therefore counter-democratic.
characteries JR as representative institutional mechanism
JR is one way of contributing to democratic self-government
not because it protects rights that are crucial to the functioning of democracy but because courts can be seen as a representative institution. Legislatures are not the only institutions which can speak on behalf of the people.
Eisgruber accepts what Waldron says
about disagreement. However, Eisgruber rejects the claim that JR will always score worse than legislatures when it comes to speaking on the behalf of a democratic people.
Eisgruber accepts what Waldron says about disagreement
describe
He agrees the moral sort of question recognition of rights raises. People have legitimate different views
For Eisgruber, Both institutions can
can speak on the behalf of the people and Eisgruber thinks that sometimes we have reason to think that judges and JR will do this more effectively and accurately than legislature
Eisgruber’s argument
Majoritarianism v Democracy
Majoritarianism is a DM that gives 51% of the people the power to make 100% of the decisions. No assumptions of fair process can attach to unbalanced result.
democracy is an attempt to impartially represent all the people.
majoritarian institutions may well be legitimate even on this understanding of democracy.
Problem with majoritarian institutions for Eisgruber
not at all responsive to the interests of minorities as well.
Describe how moral disagreement can be meaningful for Eisgruber
American people believe moral disagreement is meaningful. Most people in America believe that discussion over time will improve moral reasoning
Over time when we talk about what moral principles require, we make better decisions.
Describe how moral disagreement can be meaningful for Eisgruber
how to resolve
Moral disagreements need to be resolved based on moral argument and the application of moral principle
The application of moral reasoning and principle to particular disputes need to have some level of popular appeal.
Describe how moral disagreement can be meaningful for Eisgruber
how to resolve in a way that represents public
if the resolution of such moral disagreements can be said to be done in a way which represents the views of the people then they should be resolved on the basis of a view of justice that has some popular appeal.
Government must resolve moral disagreements based
on the right kind of reasons (ie moral principle not self-interest).
As the American people accept (i) that there is a difference between self-interest and moral principle and (ii) that moral disagreement is a meaningful activity and (iii) that discussion will over time improve moral reasoning, then
if government is going to be able to speak on behalf of the people it must respect the idea that there is more to their wishes than self-interest.
american people accept
i) that there is a difference between self-interest and moral principle and
(ii) that moral disagreement is a meaningful activity and
(iii) that discussion will over time improve moral reasoning
How do judges have a degree of democratic pedigree
Prime minister and cabinet sign off on who sits on HC in Australia. To that extent, there is an element of democratic pedigree in the appointment of judges
how are judges publicly accountable
must give reasons for their decision and those reasons can be critiqued
Judges can do a reasonable job in representing
people as a whole not on every issue of public policy but on issues that concern application of moral principle
Eisgruber argues JR does quite well in representing public due to features of judicial office
judges are disinterested and independent, publicly accountable (their vote matters and they get critiqued), have a degree of democratic pedigree:
how is senate counter majoritarian institution
It privileges state’s interests over indiivdiuals. A vote in senate may not track what majority wants. Tasmania has many senate seats as NSW.
Goldworthy think that Canadian charter and notwithstanding clause constitutes an
adequate response to waldron’s rights based case against JR. the notwithstanding clause means JR of this source does not violate waldron’s right of rights - The ultimate right of people through their elected representatives to have their final say
Goldworthy think that Canadian charter and notwithstanding clause constitutes an
Even section 33 is rarely ever evoked,
that it seems to attribute false consciousness or wide spread delusion to Canadian public and legislature
in UK HRA or ACT Statutory Bill of Rights context
Courtss are to interpret legislation consistently with HR listed in the charter. If they can’t interpret the rights consistently with the rights, they are empowered to make declaration of inconsistency
The legislation continues to be valid legislation that must be applied until such time it says we will rethink this and amend the law
