Legal Theory Workshop: Randomized Judicial Review
Legal Theory Workshop with Andrei Marmor, Professor of Philosophy and Maurice Jones Jr. Professor of Law, USC Gould School of Law, who will be discussing a paper he is currently working on.
Andrei Marmor is director of the USC Center for Law & Philosophy. He is editor-in-chief of the Journal of Ethics & Social Philosophy, an on-line peer-reviewed journal in moral, political and legal philosophy.
A prolific author on issues concerning the relations between law morality and politics, Professor Marmor has written Interpretation and Legal Theory (Oxford University Press, 1992; Hart Publishing, 2005); Positive Law & Objective Values (Oxford University Press 2001); Law in the Age of Pluralism (Oxford University Press, 2007); Social Conventions (Princeton University Press, 2009), Philosophy of Law (Princeton, 2011); and numerous journal articles.
Excerpt
"Observers of U.S. constitutional cases would have to admit that most of the important constitutional decisions of the Supreme Court are reached on (so called) ideological grounds. The justices’ moral, political, sometimes even religious, convictions tend to influence, not to say determine, the outcome of their decisions on constitutional matters, though, of course, rarely the public reasons given for them. The reasons are always cast in legal terms and phrased as legalistically as possible. But when we hear the outcome of constitutional cases, we are very rarely surprised. To the extent that an upcoming decision is not entirely predictable, the uncertainty is due to one swing vote – at most two – on the Court. I am not suggesting that this is always the case. Some decisions on constitutional matters are not fraught with overt moral, political or religious issues, and sometimes it is difficult to trace the justices’ reasons to any particular ideological convictions. But most of them are. [...]
My argument in this paper is not meant to provide an overall assessment of the arguments for and against constitutional judicial review. It is only meant to suggest that the counter-majoritarian rationale of CJR is seriously wanting. The current system of CJR is fraught with arbitrary elements, to an extent that makes the system only marginally better, if at all, compared with an overtly and blatantly randomized system."
