By Anna Harvey
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Additional resources for A Mere Machine: The Supreme Court, Congress, and American Democracy
Sample text
The presence of judicial review made it easier for previously extended public goods to be rolled back during the second Rehnquist Court terms, relative to the likely outcomes that would have prevailed in the absence of judicial review. The Rehnquist Court thus may illustrate both the apparently positive effect of a democratically accountable court on rights protections and other public goods, relative to a democratically unaccountable court, and the apparently negative effect of judicial review on those public goods, relative to the absence of judicial review, even where that review is exercised by a democratically accountable court.
Maybe precisely because the mere existence of the Constitution’s checks on the judiciary are so effective, they are only infrequently used. And maybe we have incorrectly inferred that, because the elected branches only rarely exercise their powers to discipline federal judges, those judges must be free to decide cases independently of elected branch preferences. 50 These studies have virtually all led to the conclusion that the tools possessed by the elected branches to ensure the Court’s deference do not in fact produce that outcome.
Majoritarian legislators may be removed from office for having violated our civil rights and liberties. Our power to so relieve them of their positions gives them powerful incentives not to violate those freedoms. But what gives antimajoritarian judges incentives to protect those freedoms? Development economists studying judicial independence have suggested that independent judges may simply be relatively more protected from the pressures inducing legislators and executives to predate economic and political rights.