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Conclusion 10

Judicial Politics in Polarized Times 11
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n public political discourse, denunciations of activist judges often come 14
Iacross as shrill and uninformed, but these arguments dovetail with a long- 15
standing strain of scholarly commentary insisting that rights- protecting 16
judicial decisions are incompatible with democratic governance. In mod- 17
ern constitutional scholarship, this tradition traces its roots to Alexander 18
Bickel’s 1962 observation that judicial review is a “deviant institution in 19
the American democracy” (1986 [1962], 18). Bickel ultimately concluded 20
that judicial review was, in some circumstances, democratically defensi- 21
ble, but more recently, Jeremy Waldron has objected that “rights- based 22
judicial review is inappropriate for reasonably democratic societies whose 23
main problem is not that their legislative institutions are dysfunctional but 24
that their members disagree about rights.” In Waldron’s view, “[o]rdinary 25
legislative procedures” allow democratic citizens to resolve conflicts over 26
rights “in a responsible and deliberative fashion.” As such, “an additional 27
layer of final review by courts adds little to the process except a rather 28
insulting form of disenfranchisement and a legalistic obfuscation of the 29
moral issues at stake in our disagreements about rights” (2006, 1406). In 30
the United States, he complains, “the people or their representatives in 31
state and federal legislatures can address . . . questions [of rights] if they 32
like, but they have no certainty that their decisions will prevail. If some- 33
one who disagrees with the legislative resolution decides to bring the mat- 34
ter before a court, the view that finally prevails will be that of the judges” 35
(2006, 1350). 36
In sharp contrast, an altogether different body of scholarly literature 37
has contended that exercises of judicial review are often popular and 38
rarely final. Keith Whittington and others have long argued that judicial 39

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