Judicial Review, Democracy, and Court Selection in U.S. Law

Judicial Review

The power of courts to review laws or government actions for constitutionality.

Annabelle Lever's Core Argument

Judicial review can be democratically justified even though judges are unelected. It enhances accountability, participation, and rights protection.

Waldron's Substantive Thesis

No proof courts protect rights better than legislatures.

Waldron's Procedural Thesis

Legislatures are more democratic—more participatory and representative.

Bellamy's Argument

Political constitutionalism — democracy is the constitution; judicial review lets unelected judges overrule elected officials → undemocratic.

Lever's Response to Bellamy

Democracy is more than elections; courts can also embody democratic values like accountability and participation.

Defenders' Argument (Eisgruber & Brettschneider)

Judges better protect core democratic rights.

Lever's Response to Defenders

No evidence judges are better; justification should be procedural, not about outcomes.

Lever's Alternative View

Judicial review = another channel for citizens to hold government accountable.

Legitimacy comes from democratic process, not judge superiority.

Strong judicial review better symbolizes equality between government and citizens.

Strong Judicial Review

Courts can strike down laws directly; harder to override. Symbolizes accountability and citizen empowerment.

Weak Judicial Review

Courts issue declarations of incompatibility; Parliament decides whether to act. Can be toothless.

Core Concepts

Representation: Can be electoral or descriptive (mirror of society). Both legislatures and courts can represent democratically.

Accountability: Elections are limited; judges are accountable through transparency, precedent, and justification.

Participation: Democracy extends beyond voting—includes rights claims, protest, and access to courts.

Federal Judicial Selection

Supreme Court: Nominated by the President, confirmed by Senate.

Lower Federal Courts Selection

Same process as Supreme Court, less public attention.

Big Debates in Judicial Selection

How to balance independence vs. accountability? Should ideology or qualifications dominate appointments? How has outside spending (post-Citizens United) influenced judicial elections?

State Judicial Selection Systems

Methods: Appointment, partisan/nonpartisan elections, merit (Missouri Plan), hybrid systems.

Trade-offs of Appointment

More independence, less public input.

Trade-offs of Elections

More accountability, but risk of politicization.

Merit System Trade-off

Attempts balance, but retention elections often low-information.

Core Question of Judicial Selection

Which system best balances judicial independence and democratic accountability?

Federal Question Jurisdiction

Case involves federal law (Civil Rights Act, Affordable Care Act, U.S. Patent Act), Federal crimes (interstate drug trafficking, bank robbery).

Federal Party Jurisdiction

U.S. government, agency, or federal employee is a party. Cases on Federal Aid

Diversity Jurisdiction

Parties from different states; amount in controversy ≥ $75,000.

Federal Court Hierarchy

U.S. District Courts → U.S. Courts of Appeals → U.S. Supreme Court.

Trial Courts of Limited Jurisdiction

Probate, family, traffic, small claims, juvenile. (Bench trials, single judge.)

Trial Courts of General Jurisdiction

Main civil/criminal trial courts, organized by district/county.

Intermediate Appellate Courts

Provide review; relieve state supreme courts.

Courts of Last Resort (State Supreme Courts)

Final authority on state constitutional and statutory questions.

Federal Court

Federal question, diversity jurisdiction, or federal party involved.

Crosses state lines or concerns national law.

State Court

Cases under state law (family, probate, contracts, property, torts).

Most everyday cases originate and end in state courts.

Litigiousness Myths

No real 'litigation explosion.' Most disputes never reach court (attrition high).

Tort Law Overview

Definition: Civil wrongs causing harm to another (personal injury, malpractice, discrimination).

Elements of Tort Law

Duty → Breach → Cause → Harm (Damages).

Damages in Tort Law

Compensatory, punitive, or coercive (injunctions, restraining orders).

Tort Reform

Goal: Reduce litigation and damages.

Tort Reform Types

Discouragement Policies: Limit damages (caps).

Replacement Policies: Replace lawsuits with compensation schemes (e.g., 9/11 Victim Fund).

Arguments For Reform

Reduce costs and stress, keep doctors/businesses viable, limit frivolous suits.

Arguments Against Reform

Caps restrict juries' power, average damages often already low, civil justice is already adversarial and self-limiting.

6th Amendment

Right to counsel.

Gideon v. Wainwright (1963)

Guaranteed court-appointed counsel in felony cases (later extended to any case risking incarceration).

Public Defenders

Government lawyers for indigent defendants.

Civil Representation

Civil cases often involve eviction, custody, bankruptcy, discrimination, personal injury.

Barriers to Legal Access

Cost, lack of knowledge, overburdened aid systems.

Help Sources for Legal Access

Legal aid, contingency fees, legal clinics, pro bono services.

Types of Civil Disputes

Contract, tort, family/domestic relations, estate/probate, intellectual property.

Alternative Dispute Resolution (ADR)

Negotiation: Informal give-and-take; most common.

Mediation: Neutral third party helps parties reach agreement (non-binding).

Arbitration: Neutral arbiter decides case (binding, faster, less formal).

Repeat Players vs. One-Shotters

Repeat players (businesses) have experience, expertise, and strategic advantages.

Functions of Courts

Resolve disputes, interpret laws, protect rights, maintain order, and symbolize justice.

Sources of Law

Constitution, statutes, administrative regulations, case law.

Lever on Judicial Review

A strong review is more democratically valuable because it allows citizens to initiate rights claims.

Deciding to Litigate

Individuals sue when stakes are high or no other choice.

Businesses litigate for strategic reasons (contract, patent, antitrust).