Washington Law Review

Article

The Collateral Consequences of Ex Post Judicial Review

October 01, 2013 | 88 Wash. L. Rev. 903

Abstract:  Judicial review produces disruptions to democratic preferences that are not constitutionally required. Judicial review produces these disruptions because the law the Court declares unconstitutional is not automatically replaced with the laws that policymakers would have enacted had they known their preferred policy was unconstitutional. The Court is institutionally ill-equipped to address these disruptions, and the coordinate branches are often unwilling or unable to do so—unwilling because their membership has changed since the law was enacted, or unable because of institutional features that make quick response difficult. Under either scenario, these disruptions are cause for concern. Yet they are virtually inevitable under our current system of ex post judicial review. The answer is not to abandon judicial review, which plays an important role in our constitutional structure, but to reconceptualize it. This Article offers preliminary thoughts on what a system of ex ante judicial review might look like and argues that such a system would also address the policy distortions and significant legal uncertainties caused by our current system. Recognizing that such radical reforms are unlikely to be imminent, the Article also offers a number of more modest proposals that could help address these greater-than-necessary democratic disruptions in the short term. Finally, the Article argues that the Supreme Court has not taken even these modest steps because it is unwilling to acknowledge the policy disruptions its decisions often produce. This lack of honesty about its role may impair the Court’s ability to fill that role effectively.

Judicial review produces disruptions to democratic preferences that are not constitutionally required. Judicial review produces these disruptions because the law the Court declares unconstitutional is not automatically replaced with the laws that policymakers would have enacted had they known their preferred policy was unconstitutional. The Court is institutionally ill-equipped to address these disruptions, and the coordinate branches are often unwilling or unable to do so—unwilling because their membership has changed since the law was enacted, or unable because of institutional features that make quick response difficult. Under either scenario, these disruptions are cause for concern. Yet they are virtually inevitable under our current system of ex post judicial review. The answer is not to abandon judicial review, which plays an important role in our constitutional structure, but to reconceptualize it. This Article offers preliminary thoughts on what a system of ex ante judicial review might look like and argues that such a system would also address the policy distortions and significant legal uncertainties caused by our current system. Recognizing that such radical reforms are unlikely to be imminent, the Article also offers a number of more modest proposals that could help address these greater-than-necessary democratic disruptions in the short term. Finally, the Article argues that the Supreme Court has not taken even these modest steps because it is unwilling to acknowledge the policy disruptions its decisions often produce. This lack of honesty about its role may impair the Court’s ability to fill that role effectively.

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