Discussions of Thayer's conception of judicial review, as this symposium amply demonstrates, tend to be normative. Professor Nick Zeppos's paper,1 which offers more of a positive analysis, is therefore a welcome addition. Zeppos's paper includes three especially valuable insights. First, he demonstrates the close parallel between Thayer's theory of judicial review2 and the Supreme Court's Chevron doctrine.3 The former would have the judiciary enforce clear constitutional commands but otherwise defer to legislative understandings of constitutional meaning; the latter would have courts enforce clear legislative commands but otherwise defer to administrative interpretations of statutes. Second, he offers evidence that in both the constitutional review context and the Chevron context, the Supreme Court does not in fact behave in a Thayerian fashion. The Court invokes its understanding of the Constitution to invalidate or modify legislative outcomes at a higher rate than Thayer's conception of judicial review would permit; the same holds for judicial modifications of administrative outcomes under Chevron. Third, Zeppos notes that the best-known positive model of the independent judiciarythat offered by Landes and Posner 4 -asserts that courts in a pluralist democracy will behave in fact the way Thayer and Chevron say they should behave in theory: as faithful agents enforcing pluralist outcomes. If it turns out that the independent judiciary behaves differently, then this suggests the need for a different positive model of judicial behavior.
Where Zeppos's paper falls short is in specifying a satisfactory alternative to the Landes-Posner model. The crux of the problem, I will argue, is that Zeppos, like Landes and Posner before him, overlooks the prisoner's dilemma aspects of the problem. The Landes-Posner theory specifies how the independent judiciary would behave in a world where individual pluralist actors (specifically, legislators) fully cooperate in demanding a standard of review that maximizes their collective wealth. They posit that this is the faithful agent standard. Zeppos, seeing that the independent judiciary does not in fact conform to the faithful agent model, seeks an alternative account of what kind of judicial behavior pluralist actors would demand in a world of complete cooperation among individual pluralist actors. He argues, in effect, that pluralist actors (focusing now on groups) are risk averse and hence will want courts to engage in moderate activism to provide insurance against the vagaries of the pluralist process.
Thomas W. Merrill,
Pluralism, The Prisoner's Dilemma, and the Behavior of the Independent Judiciary,
Nw. U. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/366