18 May 2011

Popularity is orthogonal to morality

Reason: Hit & Run | Damon Root | Can't We Just Abolish the Supreme Court Before It Abolishes ObamaCare?

Lithwick says she’s been tempted to abandon judicial review by the arguments of New York University law professor Jeremy Waldron, who thinks “judges should not be allowed to have the authority to strike down legislation, period.” Here’s how she summarizes Waldron’s siren song:
Allowing judges to have the last word on the constitutionality of gay marriage, abortion, or capital punishment, he wrote, is fundamentally undemocratic. In countries that do not permit judicial review, the citizens themselves are allowed to decide whether such laws are permissible. Judicial review, he wrote, undermines democratic values "by privileging majority voting among a small number of unelected and unaccountable judges."
Let’s say that judicial review does “undermine democratic values.” Are those the only values that matter? A majority of voters in the Jim Crow South would have supported racially segregated public schools in a 1954 referendum. Does that mean we should criticize the “unelected and unaccountable” justices who handed down Brown v. Board of Education in 1954? What about the unelected justices who overturned an anti-Catholic, Klan-supported Oregon law banning private schools in 1925's Pierce v. Society of Sisters? Both Brown and Pierce could be accurately described as “fundamentally undemocratic” since they violated the wishes of the voting majority. But so what? Democracy can be a wonderful thing, but it also has its limits.
Voting does not actually define what is Right. It is a mechanism — a noisy and unreliable one — for approximating what it right. It works better than other mechanisms, but it is still an approximation, not a definition.

This is obvious to anyone if they care to take a moment to think about it. If 99% of people, in a free and fair election, decided to kill every newborn baby and sacrifice them to the volcano god, infanticide would still be wrong. A panel of "unelected and unaccountable judges" who forbade infanticide would no be "undermining democratic values." Or if they were, those are not values worth having.

Incidentally, this is exactly why judges shouldn't be elected. Their whole purpose is to make unpopular decisions. Their role is to follow the rules whether people like the results or not. If they were supposed to be enacting the will of the populace we wouldn't need them.

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