Responsive Judicial Review: Democracy and Dysfunction in the Modern Age

Democratic dysfunction can occur in both at-risk and well-functioning constitutional systems. Responsive Judicial Review aims to counter this dysfunction by adopting a dialogic approach and increasing the legitimacy of decisions through careful framing and case selection. It encourages courts to engage with their institutional position and adopt a weakened approach to judicial finality, scrutiny, and remedies. Success depends on being sensitive to context-specific limitations. The idea of responsive judicial review is normative and aspirational, providing a blueprint for how courts should promote and protect democratic constitutional values.

Format: Hardback
Length: 320 pages
Publication date: 16 February 2023
Publisher: Oxford University Press

Democratic dysfunction poses a significant threat to both at-risk and well-functioning constitutional systems. It undermines the ability of these systems to respond effectively to minority rights claims and majoritarian constitutional interpretations. Responsive Judicial Review is a strategy aimed at addressing this dysfunction by drawing examples from both the global north and global south, including leading constitutional courts in the United States, the United Kingdom, Canada, India, South Africa, and Colombia, as well as select aspects of the constitutional jurisprudence of courts in Australia, Fiji, Hong Kong, and Korea.

In this book, author Dixon argues that courts should adopt a sufficiently dialogic approach to countering relevant democratic blockages and seek ways to enhance the actual and perceived legitimacy of their decisions. This involves careful choices about the framing of cases, the timing and selection of cases, and the overall orientation of judicial choices about constitutional construction. By promoting democratic responsiveness or countering forms of democratic monopoly, blind spots, and burdens of inertia, judicial review helps safeguard a constitutional system's responsiveness to democratic majority understandings.

The idea of responsive judicial review encourages courts to engage with their own distinct institutional position and potential limits on their capacity and legitimacy. Dixon further explores the ways in which this translates into a weakened approach to judicial finality, a nuanced approach to the making of judicial implications, a calibrated approach to judicial scrutiny or judgments about proportionality, and an embrace of weak-strong judicial remedies rather than wholly weak or strong remedies.

It is important to note that not all courts will be equally well-placed to engage in revi. However, by adopting a responsive judicial review approach, courts can play a crucial role in ensuring the continued functioning and legitimacy of constitutional systems, regardless of their specific context or challenges.

Weight: 626g
Dimension: 240 x 164 x 26 (mm)
ISBN-13: 9780192865779