The Federal Case for Judicial Review

Abstract

Abstract In ‘The Core of the Case Against Judicial Review’, Jeremy Waldron reset the terms of the debate over judicial review, concluding that a legislature outperformed a court as the institution best suited for resolving rights disagreements. Waldron’s arguments have had influence in both theory and practice, as even now, scholars and politicians in the United Kingdom (UK) draw on his work in debates over codifying the British constitution. But Waldron’s project is grounded in an unstated assumption—his political unit is a unitary nation state. Federation fundamentally challenges his approach and flips his conclusion on its head. This Article presents the “federal” case for judicial review and contends that, in a federation, it is the federal apex court that is superior to the federal legislature for settling disagreements over rights.