Dworkin on democracy and judicial review

by Chris Bertram on October 13, 2005

Reading Ronald Dworkin’s chapter “Political Equality” from Sovereign Virtue and James Surowiecki’s The Wisdom of Crowds back to back was a rather odd experience. I first read Dworkin as saying something like the following.

Leaving things up to the electors is all very well for issues where what the right answer is actually depends on what people want. But lots of issues, especially one’s of basic justice, aren’t like that. There’s not special reason to think that ordinary people are much good at those questions, so better to put them in the hands of people like me the justices of the US Supreme Court.

Aha! I thought, after reading Surowiecki. Maybe Dworkin goes too quickly in assuming that a panel of experts is better than the electorate is at deciding such questions. Let’s go back and see what he says. But apart from a bit of handwaving in the direction of Condorcet (inconclusive according to Dworkin, and mentioned by name by neither D nor S) there isn’t really any argument. And Dworkin’s positive claims end up looking really elusive. Like this:

For some matters where the right answer is independent of what citizens want it might , sometimes be better to have judges decide (though “it would be outrageous to suggest that only lawyers and moral philosophers should be allowed a vote on choice-insensitive matters” (p.207). And, by the way, judicial review doesn’t impugn equality of the vote “because it is a form of districting” (p. 209).

So I’d be grateful if someone out there can formulate a nice crisp thesis about these matters that I can pin on Dworkin with confidence and which doesn’t contain so many qualifications and get-outs as to be nearly worthless. I also wonder, insofar as my first attempt at a summary is an accurate rendition of what Dworkin really thinks, whether the impending Republican majority on the Supreme Court will give him cause to regret and retract his view.

{ 18 comments }

1

Jamie 10.13.05 at 9:13 am

Maybe I’m misunderstanding what you’re asking for, but I think it’s pretty simple. Questions of rights are better addressed by judges than by the majoritarian branches of the government, because (a) the whole point of rights is that they are protections (“trumps” in Dworkin’s famous metaphor) against the will of the majority, and (b) the judiciary is the branch least likely to be driven by popular opinion.
This point is from Taking Rights Seriously, a long time ago.

2

Chris Bertram 10.13.05 at 9:45 am

Hmm. That reference back to TRS sorta makes sense. But “questions of rights” is ambiguous. Defending whatever basic rights there are against majority incursion can only be part of what he’s getting at here, because there’s also the matter of deciding what basic rights there get to be in the first place.

3

Steve 10.13.05 at 11:27 am

Chris-
Your question has a basic, obvious, and easy answer. “What basic rights there get to be in the first place” are those in the Constitution. If its not in the Constitution, its not a ‘basic right’ (at least as defined by the American political system). If you don’t accept this argument (and I’m sure you don’t-its very Scalian)-you get supreme court justices as politicians-i.e. what we have today.

Steve

4

Chris Bertram 10.13.05 at 11:35 am

I understand that Steve. But SV isn’t a work that purports to be about the US system. Rather it aspires to be about “The Theory and Practice of Equality”. So that answer won’t do.

5

harry b 10.13.05 at 11:41 am

Do you know the Jeremy Waldron attacks on JR? Somehow I understood Dworkin’s view better after seeing Waldron’s attacks. It won’t help you be at all sympathetic to RD, though. Best version of it is here:

http://www.ucl.ac.uk/spp/download/ seminars/0405/Waldron-Judicial.pdf

6

harry b 10.13.05 at 11:41 am

7

Chris Bertram 10.13.05 at 11:48 am

Thanks!

8

djw 10.13.05 at 1:15 pm

It’s also all over Waldron’s Law and Disagreement. The Waldron/Dworkin debate is a difficult one. They both have unsatisfying positions, for reasons the other ably points out, and it seems certain that what’s needed is some sort of middle path, the that contours of that path are elusive and vague.

9

Hélène L. 10.13.05 at 3:19 pm

The problem is that it is unclear, contrary to what Dworkin suggests,
which questions are merely a matter of “choice” (by which he means
preferences or tastes) and which a question of right or wrong (where
judgment is involved). Should we
drive on the right or on the left? Is abortion a right or a crime? Dworkin
says the former type of question is a matter of “choice”–let the people
decide. But the latter is a matter of judgment–let the judges decide, not
the people. The problem is twofold: one, how do we know if it’s a
matter of choice or a matter of judgment? The distinction is rarely as
clear-cut as in the example I just gave (and even there it’s
debatable). Second, who has authority to decide which type of
questions should be
decided by whom? Dworkin? Why not let the people decide? And what if they
decide they are capable to judge for themselves both types of question?
And indeed, why should we
assume that nine judges are better at making judgements than a large
enough group of citizens?
The law of large number theoretically guarantees that as long as the
average voter is smarter than a flip coin (has a probably of getting it
right on any political issue superior to .5), then a large enough group
will be right with a probability close to 1. This is the mechanism behind
Condorcet Jury Theorem, Surowiecki’s defense of the “wisdom of crowds, and
perhaps even Aristotle’s argument from the wisdom of the multitude
(Politics III, 11–although the latter passage is more traditionally read
in terms of the cognitive properties of deliberation). Dworkin’s position
is basically that of an “epistocrat” where political judgment is required; elsewhere he remains a democrat. The problem is, again, how do we know
when it’s a question of choice or one of judgment.

10

Sebastian Holsclaw 10.13.05 at 7:38 pm

“But SV isn’t a work that purports to be about the US system. Rather it aspires to be about “The Theory and Practice of Equality”. So that answer won’t do.”

It probably would in theory do, you would just base the distinction between rights and non-rights on whatever the governing document was. Now if he is arguing that there need be no governing document, there is no need to call the decision-makers “judges” we ought to call them by their proper label “tyrants”.

“I also wonder, insofar as my first attempt at a summary is an accurate rendition of what Dworkin really thinks, whether the impending Republican majority on the Supreme Court will give him cause to regret and retract his view.”

Those out of power always rediscover the virtues of having an understandable and limiting government document. I suspect that Democrats will (for the first time in 50 years) begin to rediscover the point of textualism as a jurisprudential precept. Hopefully enough of them will transfer over before enough of the Republicans formally abandon it (as those in power are likely to do, unfortunately) to make it a seriously regarded concept in US law.

11

Seth Edenbaum 10.13.05 at 10:35 pm

CB: “I also wonder, insofar as my first attempt at a summary is an accurate rendition of what Dworkin really thinks, whether the impending Republican majority on the Supreme Court will give him cause to regret and retract his view.”

I’m really surprised by that line. To defend the rule of law, judicial review, or any process as such- is not to defend it only if you win.

SH: “Those out of power always rediscover the virtues of having an understandable and limiting government document. I suspect that Democrats will (for the first time in 50 years) begin to rediscover the point of textualism as a jurisprudential precept.”

The ACLU is a conservative organization. That’s its reason for being. And that’s why they represented Ollie North.
And the Nazis in Skokie Illinois.

12

Seth Edenbaum 10.13.05 at 10:54 pm

ps

“Dworkin’s position is basically that of an “epistocrat” where political judgment is required; elsewhere he remains a democrat.”

Isn’t representative democracy itself a form of ‘epistocracy’?

13

Dan Simon 10.13.05 at 11:50 pm

I also wonder, insofar as my first attempt at a summary is an accurate rendition of what Dworkin really thinks, whether the impending Republican majority on the Supreme Court will give him cause to regret and retract his view.

Not only have liberal legal scholars begun finding a strange new respect for judicial restraint, but on the other side–as I’ve pointed out–conservatives are really starting to get into the whole result-oriented judiciary thing. (Consider the Conservative reaction to Kelo, for example.)

This isn’t a liberal disease or a conservative disease–it’s an American disease. As I argued in another thread, if you’ve got a Constitutional civil religion, complete with a Gospel and a priesthood, political factions will alternate between the roles of Jesuits and Protestants.

14

abb1 10.14.05 at 3:45 am

Now if he is arguing that there need be no governing document, there is no need to call the decision-makers “judges” we ought to call them by their proper label “tyrants”.

But governing documents can be extremely vague:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

How is it different from saying something tautologically meaningless like judge shall be just?

So, does the fact that such a (purely symbolic, frankly) governing document exists constitute a difference between ‘judge’ and ‘tyrant’? And how does textualism help here?

15

Tony Vila 10.14.05 at 1:28 pm

I would say Dworkin defines the applicable rights as something that can’t be fixed if they weren’t a right. For instance, you can’t be denied the ability to vote, because if you couldn’t vote you would never have a chance of getting yourself that right. You can be denied the ability to own a gun, because if you don’t like that you can vote for someone who will give you a gun.

Which plays into how courts do wholy unconstitutional but clearly necessary decisions, like Baker that said congressional districts need to represent equal numbers of people.

16

Hélène L: 10.15.05 at 12:22 am

“Isn’t representative democracy itself a form of ‘epistocracy’?”

Seth–I think so too. On the other hand, unlike what happens in the choice of judges, representatives are chosen by the people themselves, and not necessarily on epistemic criteria (at least not the type of criteria that would satisfy Dworkin). So representative democracy is a weird type of epistocracy where the “knowers” are identified and in fact defined by majority rule.

17

Seth Edenbaum 10.15.05 at 11:30 am

You will always have and need experts and not only for ‘technical’ reason. One of the things that bothers me about the tendencies of CT members and readers, and of web savvy intellectuals as a group is equation of expertise with wisdom. Wisdom is a amorphous idea and makes such people nervous. It’s too close to priesthood and too far from science. Liberal intellectuals have a hard time the muck of things as they do with the muck of their own contradictions.

To amend my comment above: arguing that we should rely less on judicial review is not the same as arguing against the idea of it. But then if “political factions will alternate between the roles of Jesuits and Protestants” is that a problem?
If someone plays a serve and volley game should I refuse to adjust my strategy of staying at the back of the court?

Guess what? The states may become the next engine of liberal change. Time to read just data on which you logical arguments are based. Wisdom is observation as to when a specific technically consistent logic no longer applies.

People who are observant in this way make good ‘judges.’
Do we elect them? Elect others to choose them?
Interesting problem. But to say that wisdom as such is common or is not necessary or does not exist[!] is silly.

Sophistocation and Sophistry are not the same thing.
How to define the difference?
That’s where the fun begins

18

Seth Edenbaum 10.15.05 at 12:36 pm

Well that was sloppy want’t it?
Not much sleep last night.

It’s odd that people don’t see our governemnt as more of a continuum with previous forms.
Some want to lead and others would rather follow; but it’s important to create reciprocal forms of administration that allow each to communicate with the other and come to agreement. Monarchy works by this logic. Only in Fascism are the reciprocal relationships a sham.

Reliance on judicial review has resulted in a backlash. It’s never smart to get too far ahead of the people. So we learn our lesson and go on; try another tack: the games continue.
But I still find something incredibly vulgar in the original question. That’s the only word I can use to describe a question so based on a refusal to look at people as they are qnd the world as it is.

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