Democracy through Courts?

Abstract The democratic critique of judicial review by constitutional courts has prompted its defenders to counter that courts have democratic qualities as good as, and in certain respects even stronger than, conventional democratic politics. This chapter offers a critical analysis of three arguments favouring this approach. The first argues that constitutional courts operate as exemplars of democratic deliberation. In particular, they give expression to the public reasons underlying democracy and ensure democratic practice does not subvert its ideals. The second holds that rights-based litigation offers a form of democratic participation, providing a voice to those who might have been excluded from electoral democracy. The third contends that judges operate in a similar way to elected representatives, who are best conceived as trustees rather than as delegates. All three views are found wanting. Courts do possess certain limited democratic qualities. However, they are not intrinsic features of courts themselves. They arise from their being dependent upon, rather than independent from, the conventional democratic process. True democratic legitimacy stems from political equality and electoral processes that enable citizens to influence law-making directly. Rather than idealizing courts as democratic alternatives to legislatures, the chapter advocates ‘weak review’, urging courts to act with democratic sensitivity, and impartiality, without undermining the supremacy of a democratically accountable legislature. It suggests that an appointment process aiming at randomized and balanced indicative representation among judges might improve these qualities.