A Stream That Rises above Its Source: Judicial Review from a Public Choice Perspective

Michael C. Munger

Supreme Court Economic Review, 2019, vol. 27, issue 1, 25 - 59

Abstract: A typical discussion of judicial review pits the view of Alexander Hamilton in Federalist no. 78 (protection from the “cabals of a representative body”) against the much more circumscribed view of Justice Owen Roberts (“lay the article of the Constitution which is invoked beside the statute which is challenged and decide whether the latter squares with the former”). This tension between two views informs much of the current debate over judicial review. But the “tension” is illusory; the real problem can be analyzed as a two-dimensional spatial problem, with participants having preferences over both the substantive issue being litigated and the principle of judicial review in the abstract. This article presents a set of results based on such a spatial analysis and considers an answer to the apparent paradox that judicial review may prevail against political majorities for long periods. Furthermore, the results from the model indicate that any purely issue-oriented “median voter” approach to court voting is misspecified and will lead to incorrect predictions.

Date: 2019
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