Justice and Accountability: Activist Judging in the Light of Democratic Constitutionalism and Democratic Experimentalism

Authors

William H. Simon, Columbia Law SchoolFollow

Document Type

Working Paper

Publication Date

2016

Abstract

This essay examines the charge that activist judging is inconsistent with democracy in the light of two recent perspectives in legal scholarship. The perspectives – Democratic Constitutionalism and Democratic Experimentalism – suggest in convergent and complementary ways that the charge ignores or oversimplifies relevant features of both judging and democracy. In particular, the charge exaggerates the pre-emptive effect of activist judging, and it implausibly conflates democracy with electoral processes. In addition, it understands consensus as a basis for judicial legitimacy solely in terms of pre-existing agreement and ignores the contingent legitimacy that can arise from the potential for subsequent agreement.

Disciplines

Civil Law | Civil Rights and Discrimination | Constitutional Law | Jurisprudence | Law

Recommended Citation

William H. Simon, Justice and Accountability: Activist Judging in the Light of Democratic Constitutionalism and Democratic Experimentalism, Law, Culture and the Humanities, Vol. 15, p. 602, 2019; Columbia Public Law Research Paper No. 14-516 (2016).
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1986