The welfare effects of minority-protective judicial review
| Published date | 01 October 2015 |
| Date | 01 October 2015 |
| DOI | 10.1177/0951629814547301 |
| Subject Matter | Articles |
Article
Journal of Theoretical Politics
2015, Vol.27(4) 499–521
ÓThe Author(s) 2014
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DOI: 10.1177/0951629814547301
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The welfare effects of
minority-protective judicial
review
Justin Fox
Department of PoliticalScience, Washington University in St. Louis, USA
Matthew C Stephenson
Harvard Law School, Cambridge, MA, USA
Abstract
Constitutional theorists usually assumethat minority-protective judicial review leads to outcomes
more favorable to the protected minority and less favorable to the majority. Our analysis high-
lights an indirect effect of judicialreview that complicates this conventional wisdom.Without judi-
cial review, pro-majority and pro-minority leaders adoptdifferent policies. Because judicial review
limits the degree to which pro-majority leaders can adopt anti-minority policies, it becomes eas-
ier for pro-minority leaders to ‘mimic’ pro-majority leaders by adopting the most anti-minority
policy that the judiciary would uphold. Furthermore, if judicial invalidation of anti-minority poli-
cies is probabilistic rather than certain, pro-majority leaders may propose even more extreme
anti-minority policies in order to deter pro-minority leaders from mimicking. These effects can
sometimes nullify, or even reverse, the assumed relationship between minority-protective judicial
review and pro-minority outcomes. When such reversal occurs, majoritarian democrats should
favor minority-protective judicial review, while those concerned with protecting unpopular mino-
rities should oppose it.
Keywords
Countermajoritarian difficulty;judicial review; political agency
Corresponding author:
Justin Fox, Departmentof Political Science, Washington Universityin St. Louis, Seigle 237, St. Louis, MO
63130, USA.
Email: justin.fox@wustl.edu
1. Introduction
Constitutional judicial review, which empowers unelected judges to reject the deci-
sions of elected legislatures and executives, raises what Bickel (1962) described as a
‘countermajoritarian difficulty.’ The countermajoritarian nature of judicial review
has led many constitutional theorists to advocate rejection or curtailment of judi-
cial power (Tushnet, 2000; Waldron, 2006). Others, however, have emphasized that
majoritiarian policymaking may lead to an undesirable ‘tyranny of the majority’ in
which certain vulnerable minority groups consistently lose out (Guinier, 1994).
Many influential legal scholars see judicially enforced constitutional limits as a pos-
sible remedy for the pathologies of majoritarianism (Chemerinsky, 2004; Dworkin,
1985; Ely, 1980). Important contributions to the political economy literature sug-
gest similar conclusions (Maskin and Tirole, 2004; Rogers and Vanberg, 2007).
All sides of the normative debate over countermajoritarian judicial review make
certain positive assumptions about the effect that such review is likely to have. One
such assumption is that minority-protective judicial reviewleads to policy outcomes
that are closer to those favored by the relevant minority group and further from
those favored by the majority. This assumption, which undergirds both the stan-
dard critique of judicial review as antidemocratic and the standard defense of judi-
cial review as a bulwark against majoritarian excesses, is natural and intuitive. As
this paper will show, however, it may often bewrong. Although minority-protective
judicial review sometimes benefits the minority at the expense of the majority, such
review can sometimes benefit both the majority and the minority, or may affect the
expected welfare of one group without affecting the other group’s expected welfare
at all. In some cases, seemingly countermajoritarian judicial review may even bene-
fit the majority at the expense of the minority.
1
These results arise because judicial review, which, as we model it, imposes an
outer limit on how anti-minority the final policy outcome may be, not only has the
direct effect of prohibiting overly anti-minority policies, but may also have an indi-
rect effect on leader strategies. Specifically, a judicially imposed constraint on pol-
icy outcomes alters leaders’ ability and incentive to use their policy choices to
conceal or reveal their true characteristics, and thereby to affect their popularity
with voters. Leaders who share the majority group’s policy preferences have an
incentive to credibly signal this fact, while leaders who sympathize with the minor-
ity may have an incentive to conceal this by mimicking the expected behavior of
pro-majority leaders. Minority-protective judicial review can interfere with the
pro-majority leader’s ability to signal his type, thereby leading pro-minority leaders
to mimic more often. To illustrate, suppose that without judicial review, a pro-
majority leader would adopt a policy so unfavorable to the minority group that a
pro-minority leader would not be willing to mimic it. Under these circumstances,
the pro-minority leader would instead adopt the minority group’s most-preferred
policy. Now suppose that judicial review imposes a constraint on the pro-majority
leader’s choice, forcing him to enact a policy somewhat more favorable to the
minority faction. This reduces the cost to the pro-minority leader of mimicking the
pro-majority leader; if this cost becomes small enough, the pro-minority leader will
500 Journal of Theoretical Politics 27(4)
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