Judicial Deference to the Legislative Process

May 22nd, 2011

Interesting piece from Ittai Bar-Siman-Tov titled The Puzzling Resistance to Judicial Review of the Legislative Process. The article questions why Courts are so reluctant to scrutinize procedural irregularities in the enactment of bills.

Should courts have the power to examine the legislature’s enactment process and strike down statutes that failed to meet procedural lawmaking requirements? This idea remains highly controversial. While substantive judicial review is well-established and often taken for granted, many judges and scholars see judicial review of the legislative process as utterly objectionable. This Article challenges that prevalent position, and establishes the case for judicial review of the legislative process.

The Article argues that, ironically, some of the major arguments for substantive judicial review in constitutional theory, and even the arguments in Marbury v. Madison itself, are actually more persuasive when applied to judicial review of the legislative process. It further claims that even some of the arguments raised by leading critics of judicial review can actually be employed as arguments for justifying judicial review of the lawmaking process. Countering the orthodoxy in American constitutional law and theory, the Article argues therefore that judicial review of the enactment process is no less important, and in fact, more justifiable than substantive judicial review.