Waldron’s rationale for setting up his case against judicial review in an idealized democratic society is to take the debate away from the excessive emphasis on the historical outcomes of judicial rulings towards the “core” context-independent argumentation. While I concur that this framework could help distill normative grounds of judicial review, I would be cautious in extrapolating the conclusions of this debate to real-world democracies. I am particularly perturbed about the third assumption. The societal commitment to minority rights, even if seemingly present among the democratic majority, can shift quickly. In that case, the lack of entrenched counter-majoritarian protection for minority rights might enable lawful oppression. I, therefore, accept these assumptions exclusively for the purpose of responding to Walrdon’s procedural thesis.

In his process-based argument, Waldron explores whether it’s democratic for unelected judges to strike down decisions of elected legislators. He argues that legislators should have the final decision in the rights disputes because they are more representative and accountable to the public via fair elections. A strong judicial review, on the other hand  “disenfranchises ordinary citizens and brushes aside cherished principles of representation and political equality”. The former solution is therefore inferior to legislative decision-making on the basis of procedural legitimacy.  I will address this thesis by first considering the sources and challenges of democratic representation and then the issue of legislative and judicial accountability.

Democratic Representation

Waldron argues that the legislature is more democratically representative than the judiciary because the former uses elections while the latter relies on appointments. His argument, however, fails to distinguish democracy from representative democracy from a representative democracy that uses elections as opposed to other selection mechanisms. He seems to support the notion of electoral fundamentalism, whereas elections are assumed by default as a perfect embodiment of democracy and require little justification. 

First, representative democracy differs from direct democracy; the former is a popular solution to the feasibility constraints of implementing the latter. In a direct democracy, citizens can make decisions on policy directly, without relying on representatives. They get to control the entire political process. In a representative democracy, people choose representatives who are meant to advocate for their interests. It’s important to emphasize that political power is to some degree taken away from the people. Therefore, while the legislature can be argued to be sufficiently representative and its procedures command obedience, it’s not by default a perfect embodiment of democracy. 

Second, different mechanisms for choosing representatives yield different degrees of representation. An election is not the best selection mechanism for maximizing representation. Democratic representation relies on the idea that all groups in a society should have proportional representation in the legislature so that political deliberation and decision making-reflects the experiences and sentiments of different groups it represents. Waldron would agree that electoral systems are imperfect. Still, since we are assuming a healthy functional democracy, he would argue that elections would be sufficiently legitimate, and this topic shouldn't be of significant concern to us. However, even in an idealized democratic society, electoral mechanisms that operate without "pathologies" like corruption do not translate into a well-representative legislature. For example, in a multiparty legislature (assumed by Waldron), a single party rarely gets majority seats. If the winners are determined using the first past the post system, the legislature gets elected by the minority. Such a legislature is still sufficiently legitimate to command obedience, but it cannot be claimed an exemplary embodiment of the democratic ideal of representation.

In addition to sub-optimal representation caused by imperfect voting systems in multiparty legislatures, elections per se have barriers to entry and are biased towards career politicians. Firstly, legislators are not randomly chosen citizens. In most representative democracies, they are well-spoken political leaders who can allude to the interests of different groups in a society. Most electoral systems require candidates for the legislature to prove a certain level of initial public support and sometimes be a member of a political party to qualify for elections. These minimal criteria favor candidates with political competence and more resources. These resources could be financial or social capital enabling support from established parties or simply the time and persuasion capacity needed to gather sufficient public support to qualify for elections. As such, there’s a clear threshold to public participation. This means that actors with more privilege have higher chances of becoming legislators. When the legislative body is composed of primarily privileged elites, marginalized groups do not get sufficient representation. Even if legislators are well-meaning and allude to the interests of these groups, they cannot truly understand their experience and represent them as well as direct members of these groups could. Secondly, electoral systems in representative democracies encourage a systemic bias towards career politicians. The assumption of reelection is at the core of the argument for electoral accountability, which suggests that reelection pressures constraint the self-interested behavior of legislators. So, even if the selection mechanism for legislators is ideal, some citizens will be repeatedly elected as encouraged by the system. Therefore, some citizens will have the right to repeated input. Ideally, everyone should have an equal chance of being elected to the legislature. Consider sortition as an alternative system for choosing representatives. Randomly selecting representatives from the general public through lottery enables everyone to have a mathematically equal chance of being selected. No one is excluded from the political process on any basis (Tsakiliotis, 2019).

Judges are selected through the appointment mechanism because they are expected to have specific expertise. A threshold for participation and the justified use of an alternative selection mechanism is insufficient to suggest that judges are undemocratic or non-representative. As demonstrated, legislative elections also suffer challenges when it comes to representation and public participation. Therefore, legislative decision-making cannot be claimed as procedurally superior to the judiciary based on electoral representation. The idea of judges threatening the ethos of democratic representation because they’re appointed instead of elected is grounded in the exaggerated importance of elections to democracy. 

In his first assumption, Waldron hints that legislators embody the principle of democratic representation by “thinking of themselves as representatives...sometimes in terms of a virtual representation of interests and opinions throughout the society”. Similarly, judges can embody democratic values in the way they deliberate and make decisions. They are also constrained by institutional guidelines that can frame their thinking to promote political egalitarianism and representation. Finally, they themselves can represent different demographic and cultural groups (Lever, 2009).

Democratic Accountability

Waldron argues that an unelected judiciary threatens democracy because it is not constrained by the reelection pressures like legislators are. The implicit assumption seems to be that reelection is the only mechanism for democratic accountability that is worth considering. However, judicial accountability can come from many sources. Clear standards and the public nature of judicial decision-making can enable sufficient checks on judicial behavior. For example, the standard of impartiality and consistency could limit the role of private interests and biases in judicial rulings. A counter argument could suggest that judicial reasoning doesn't always embody a perfect application of logic to the case, and extralegal factors get involved. For example, judges can choose precedent and draw analogies between cases in a way that aligns with their private feelings about the topic. The significant biases in such cases could be constrained by the need to articulate reasoning clearly in the ongoing hearing and by knowing that judicial decisions might be revisited. A predetermined structure of judicial proceedings makes it easier to distill judicial reasoning, thus making it easier to challenge it and hold the judges accountable to the standards. There are also entrenched mechanisms to keep judges accountable such as impeachment. An even stronger democratic check is the lack of enforcement powers vested in the judiciary. Judges rely on rational-legal authority to command obedience to their rulings. If judges repeatedly rule in a way that invalidates their rational-legal authority, their rulings can be ignored and unenforced.

To sum up, there's a scrupulous accountability structure constraining judicial behavior and making judicial review consistent with the ethos of democratic accountability. It differs from the accountability structure imposed on legislators because of the nature of the judicial function and the difference in expectations and procedures imposed on the judiciary's operations. Given that electoral mechanisms also face challenges of representation, and the judiciary relies on different but sufficiently effective forms of democratic accountability, the claim of overwhelming supremacy of the legislative branch is ungrounded. Therefore, there is no solid reason to reject judicial review from the procedural legitimacy standpoint. Moreover, judicial review can advance democratic accountability and representation by enabling less-represented groups to challenge legislative decisions.