The Core Case for Weak-Form Judicial Review

This Article contributes to debates over the democratic desirability of judicial review, by stating a quasi-general case for the desirability of judicial review that is "weak"-or broad but non-final-rather than "strong"-form in nature. Judicial review of this kind, the article argues, can help counter blockages in the legislative process-such as legislative "blind spots" and "burdens of inertia"-that can otherwise impair the enjoyment of individual rights even of a kind recognized by democratic majorities. This, the Article suggests, provides an important, if contingent, outcome-based case in favor of courts exercising powers of weak-form review. The case for weak judicial review of this kind may be combined with a theoretical case for strong, or even super-strong, judicial review in more pathological democratic cases, and must ultimately be assessed based on the actual history and practice of legislative and judicial constitutionalism in a particular country.

But it provides a relatively general argument for why those persuaded by Waldron's Core Case should distinguish between judicial review that is strong and weak in form when assessing both the legitimacy and desirability of judicial review from a democratic perspective.