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.
William H. Simon,
Justice and Accountability: Activist Judging in the Light of Democratic Constitutionalism and Democratic Experimentalism,
Law, Culture, and the Humanities, published online June 29, 2016; Columbia Public Law Research Paper No. 14-516
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1986