Responsive Judicial Review: Democracy and Dysfunction in the Modern Age

by Rosalind Dixon

Democratic dysfunction can arise in both 'at risk' and well-functioning constitutional systems. It can threaten a system's responsiveness to both minority rights claims and majoritarian constitutional understandings. Responsive Judicial Review aims to counter this dysfunction using examples from both the global north and global south, including leading constitutional courts in the US, UK, Canada, India, South Africa, and Colombia, as well as select aspects
of the constitutional jurisprudence of courts in Australia, Fiji, Hong Kong, and Korea.

In this book, Dixon argues that courts should adopt a sufficiently 'dialogic' approach to countering relevant democratic blockages and look for ways to increase the actual and perceived legitimacy of their decisions—through careful choices about their framing, and the timing and selection of cases. By orienting judicial choices about constitutional construction toward promoting democratic responsiveness, or toward countering forms of democratic monopoly, blind spots, and burdens of
inertia, judicial review helps safeguard a constitutional system's responsiveness to democratic majority understandings. The idea of 'responsive' judicial review encourages courts to engage with their own distinct institutional position, and potential limits on their own capacity and legitimacy.

Dixon further explores the ways that this translates into the embracing of a 'weakened' approach to judicial finality, compared to the traditional US-model of judicial supremacy, as well as a nuanced approach to the making of judicial implications, a 'calibrated' approach to judicial scrutiny or judgments about proportionality, and an embrace of 'weak – strong' rather than wholly weak or strong judicial remedies. Not all courts will be equally well-placed to engage in review of this
kind, or successful at doing so. For responsive judicial review to succeed, it must be sensitive to context-specific limitations of this kind. Nevertheless, the idea of responsive judicial review is explicitly normative and it aims to provide a blueprint for how courts should think about the
practice of judicial review as they strive to promote and protect democratic constitutional values.

307 pages, Kindle Edition

Published January 18, 2023

About the author

Rosalind Dixon is Assistant Professor of Law at the University of Chicago Law School.

Rosalind Dixon earned her BA in government and economics, and her first law degree (with highest honors) from the University of New South Wales, Sydney, in 2001. She earned her LLM and SJD from Harvard Law School in 2004 and 2008, respectively. While at Harvard, Ms. Dixon served as a Fellow in the Justice, Welfare, and Economics Program, and a Teaching Fellow in Constitutional Law, Constitutional History, Comparative Constitutional Law, and Comparative Constitutional Engineering. Before her time at Harvard, she clerked for the Chief Justice of Australia, the Hon. A. M. Gleeson A.C., taught at the University of New South Wales, and practiced as an associate (or solicitor) in the dispute resolution department at Mallesons Stephen Jaques.

Ms. Dixon's teaching and research interests include constitutional law, comparative constitutional law and design, international human rights, and law and gender.