Comment on Ferejohn's "Judicializing Politics, Politicizing Law".(response to Article by John Ferejohn in This Issue, P. 41)

Abstract

I INTRODUCTION Professor John Ferejohn's article is a preliminary, yet provocative, examination of some key issues raised by the exercise of legislative power by the judicial branch. (1) Ferejohn argues for a broader perspective on this problem, and includes a comparison of European and United States judicial activity; Ferejohn, however, ultimately restricts his analysis almost exclusively to the situation in the United States. Let us begin with Ferejohn's definition of legislative power as the capacity to generate binding norms. (2) A grossly simplified outline of Ferejohn's argument might be: (1) If legislation can happen anywhere in government, and (2) If legislative power is the most dangerous to liberty and justice, then (3) The issue of how to control legislative power is the central problem of institutional design in democracies; however there is no single answer. In other words, the solution must be "institutionally unspecific." (3) The real question, given Ferejohn's real interest, is identifying the circumstances under which, and the extent to which, courts exercise legislative power. Read literally, Ferejohn's article depicts the courts' capacity to exercise legislative power as a kind of Brigadoon: (4) If conditions are right, the capacity appears. (5) If the conditions change, then the capacity of courts to legislate may disappear again, perhaps for a long period. (6) It struck me that the best way to represent Ferejohn's claims is to use a two-by-two matrix, the classic political science representation for a conditional theoretical claim. I was disappointed to see that, since Professor Ferejohn has been spending more time at law schools, he missed an obvious opportunity to use one of political science's hallmark tools. I hope, however, that I am not too late to save the day with this representation. Table 1, below, is the representation that comes to mind. TABLE 1 THE DILEMMA OF JUDICIAL LEGISLATION: TOO WEAK, OR TOO BROAD? It is Appropriate for the Court to Legislate? Does Court Have Power Yes to Legislate? Yes Court exercises power by generating binding norms in areas appropriate for such exercise: GOOD No Court is so weak that it cannot exercise legislative power even in areas where it would be appropriate: BAD It is Appropriate for the Court to Legislate? Does Court Have Power No to Legislate? Yes Court exercises too much power in areas inappropriate to such exercise: BAD No Court is unable to exercise power outside of appropriate areas: GOOD Table 1 represents the dilemma that the judiciary presents to institutional designers. (7) If, in fact, most legislative power is initially vested in the legislature, then the court may well be too weak. There are, after all (and as Ferejohn rightly points out), some settings in which the generation of binding norms by the judiciary is quite appropriate: "rules that need to be developed in light of repeated experience in use, and that should answer to concerns about equality, due process, and Justice." (8) In fact, the capacity of courts to legislate in such settings may be crucial to the proper functioning of the government. The dilemma illustrated in Table 1 is that the court either has power or it does not. There is an important normative element to the tradeoff being illustrated. In fact, I expect that, though it may not be obvious, this normative tradeoff undergirds many of the key debates in the role of the courts. …