Responsive judicial review : democracy and dysfunction in the modern age / Rosalind Dixon.

Format:

Book

Author/Creator:

Dixon, Rosalind, author.

Series:

Oxford comparative constitutionalism.

Oxford comparative constitutionalism

Language:

English

Subjects (All):

Democracy.

Judicial review.

Physical Description:

1 online resource (251 pages)

Place of Publication:

Oxford, England : Oxford University Press, [2023]

Summary:

"Democratic dysfunction can arise in both 'at risk' and well-functioning constitutional systems. It can threaten a system's responsiveness to both minority rights claims and majoritarian constitutional understandings. Responsive Judicial Review aims to counter this dysfunction. Rosalind Dixon argues that courts should adopt a sufficiently 'dialogic' approach to countering relevant democratic blockages and look for ways to increase the actual and perceived legitimacy of their decisions-through careful choices about their framing, and the timing and selection of cases. By orienting judicial choices about constitutional construction toward promoting democratic responsiveness, or toward 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 own capacity and legitimacy. Dixon further explores the ways that this translates into the embracing of a 'weakened' approach to judicial finality, compared to the traditional US-model of judicial supremacy, as well as 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' rather than wholly weak or strong judicial remedies. Not all courts will be equally well-placed to engage in review of this kind, or successful at doing so. For responsive judicial review to succeed, it must be sensitive to context-specific limitations of this kind. Nevertheless, the idea of responsive judicial review is explicitly normative and aspirational: it aims to provide a blueprint for how courts should think about the practice of judicial review as they strive to promote and protect democratic constitutional values"-- Provided by publisher.

Contents:

Intro

Title Page

Copyright Page

Contents

1. Introduction

A. Courts and Democratic Dysfunction: Promoting Democratic Responsiveness

B. Responsiveness to Context and Limits on Judicial Capacity

C. Responsive Judging: Responding to Litigants (and Disappointed Parties)

D. A Sometimes View of the Promise of Judicial Review

E. Structure of the Book

Part 1 Democratic Foundations

2. Constitutions and Constructional Choice

A. Judicial Review and Constructional Choice

1. Abortion, sexual privacy, and same-sex marriage

2. Implied speech and equality rights

3. Structural social rights

4. An unconstitutional amendment doctrine

B. Constitutional Theory and Constructional Choice

1. Abortion

2. Sexual privacy and equality

C. Why Courts? Constitutional Choice and Democracy

D. Ely's Response

E. Criticism of Ely's Approach

F. Representation-Reinforcement Beyond Ely

3. Defining Democracy and Democratic Dysfunction

A. Defining Democracy

B. Democratic Dysfunction: Antidemocratic Monopoly Power

1. Electoral monopoly

2. Institutional monopoly

3. Monopoly: Intent versus effect

C. Legislative Blind Spots and Burdens of Inertia

1. Legislative blind spots

2. Legislative burdens of inertia

D. "Deliberate" versus Interconnected Democratic Blockages

Part 2 Courts and Democratic Responsiveness

4. The Scope and Intensity of Responsive Judicial Review

A. The Legal and Political Legitimacy of Judicial Review

B. The Political Legitimacy of Constitutional Implications

C. Responsive Review in Practice

1. Abortion rights

2. LGBTQI+ rights

3. Implied rights to freedom of expression and equality

4. Structural social rights

5. Unconstitutional amendment doctrine.

D. The Intensity of Judicial Review: Toward Calibrated Proportionality or Scrutiny

1. Calibrating judgments about limitations on expression

2. Calibrating judgments about discrimination

E. Deference and a Legislative Action/Inaction Distinction

5. Democratic Dysfunction and the Effectiveness of Responsive Review

A. Detecting Democratic Dysfunction

B. Countering Dysfunction

C. Responsive Judicial Review in Practice

1. Comparative LGBTQI + rights

2. Structural social rights

3. Unconstitutional amendment doctrine

D. Preconditions for Success

1. Judicial independence and a political tolerance interval for judicial review

2. Litigation support structure

3. Jurisdiction and remedial toolkit

6. Risks to Democracy: Reverse Inertia, Democratic Backlash, and Debilitation

A. Limits on Judicial Capacity and Legitimacy

B. Reverse Burdens of Inertia

C. Democratic Backlash

D. Democratic Debilitation

E. Judicial Prudence, Principle, and Pragmatism

7. Toward Strong-Weak/Weak-Strong Judicial Review and Remedies

A. Weakened Judicial Review

B. Why (and How to) Weaken Review

1. The democratic minimum core and the pragmatic argument for weak-strong judicial review

2. Blind spots and burdens of inertia: a principled and pragmatic case for weak-strong review

C. Toward Strong-Weak/Weak-Strong Judicial Review

D. Conclusion

Part 3 Responsive Judging and Comparative Constitutional Theory

8. A Responsive Judicial Voice: Building a Court's Legitimacy

A. Why Responsive Judging-or a Responsive Judicial Voice

B. Judicial Framing and Responsive Judicial Review

1. Authorship

2. Tone: Respect or comity

3. Narrative

C. Responsive Judicial Review and Judging: Building Support for LGBTQI+ Rights

D. Responsive Judging and the Democratic Minimum Core.

E. Responsive Judging: Limits and Cautions

1. Limits on responsive judging

2. Democratic legitimacy versus legitimation

3. A responsive judicial voice beyond the bench

9. Conclusion: Toward a New Comparative Political Process Theory?

Index.

Notes:

Description based on print version record.

Includes bibliographical references and index.

Other Format:

Print version: Dixon, Rosalind Responsive Judicial Review

ISBN:

0-19-195652-X

0-19-268970-3

0-19-268971-1