Pluralism, Conversation, and Judicial Restraint
If democracy is partly about a lively public conversation, what are the implications for judicial review? This paper argues that pluralism - of outcomes, interest groups, and values - is good for public conversation. Judicial decisions sometimes promote pluralism in all three senses. But judicial review often has a bent towards uniformity rather than pluralism, if only because courts are in a single chain of command on constitutional and other federal questions. The "political branches", federal and state, are more decentralised. Thus when courts decide fewer public questions, there is space for a more pluralistic patchwork of political outcomes, hence space for better - more effective and responsible - public conversation as well. This suggests a rather restrained neo-Thayer standard for judicial review: courts should not lay down a constitutional rule, or perhaps even a broad interpretation of federal statute, unless things would be even worse from a pluralist point of view without the decision, or the decision is otherwise right "beyond a reasonable doubt".
Digital USD Citation
Schwarzschild, Maimon, "Pluralism, Conversation, and Judicial Restraint" (2001). Institute on Law and Philosophy Scholarship. 153.