Quarterly Journal of Political Science > Vol 10 > Issue 3

Increasing Leverage: Judicial Review as a Democracy-Enhancing Institution

Nicholas Almendares, Tulane University Law School, USA, n.almendares@tulane.edu Patrick Le Bihan, Institute for Advanced Study in Toulouse, France, patrick.lebihan@iast.fr
 
Suggested Citation
Nicholas Almendares and Patrick Le Bihan (2015), "Increasing Leverage: Judicial Review as a Democracy-Enhancing Institution", Quarterly Journal of Political Science: Vol. 10: No. 3, pp 357-390. http://dx.doi.org/10.1561/100.00013147

Published: 17 Sep 2015
© 2015 N. Almendares and P. Le Bihan
 
Subjects
Law and Economics,  Law and Economics: Constitutional Law,  Comparative Political Economy,  Comparative Politics,  Courts,  Democracy,  Elections,  Representation
 

Article Help

Share

Download article
In this article:
1. Baseline Model
2. Introducing Judicial Review
3. Judicial Review and Democracy
4. Voter Welfare with Judicial Review
5. Conclusion
Appendix
References

Abstract

Although judicial review is used to police constitutional boundaries, the practice raises serious democratic concerns because unelected judges can overrule the decisions of political majorities. Using an agency model we show that judicial review has a heretofore unacknowledged democracy-enhancing effect. By constraining the policy choices made by elected representatives, judicial review increases the importance of office benefits as compared to policy benefits, making it more likely that politicians behave in the voters' best interests. Politicians do so across policy issues, including those that courts cannot review, leading to a spillover effect. These effects do not depend on the preferences of the court, nor on the courts' decisions being observed by the voters. The overall impact judicial review has on democracy is ambiguous, however, because this democracy-enhancing effect comes at the expense of turning some policies over to the courts. We suggest that this ambiguity can be resolved in favor of democracy by tailoring the courts' jurisdiction or standards of review.

DOI:10.1561/100.00013147

Online Appendix | 100.00013147_app.zip (ZIP).

This is the article's accompanying appendix.

DOI: 10.1561/100.00013147_app