Judicial review of political processes

Abstract

This PhD thesis addresses the question whether the operation of the Irish superior courts in constitutionally reviewing political processes - with the power to strike them down - is a valuable institution that is compatible with democracy. This question is answered "yes" with the proviso that the role should be performed in a restrained manner. These claims are based on an account of democracy that says that democracy, as a system of government, ought to be recognised as pluralist in its justification, non- essentialist in its nature (subject to certain minimum conditions being present for a plausible claim to be democratic), and subject to evaluation by reference to an expansive range of consequences. This understanding of democracy recommends that the precise shape of the institutions and processes of democracy should themselves be worked out via democratic means. However, given that the shape of democracy will be recognised as not set in stone or immutable, there is a continuing danger of decay: democratic voting might lead to the degradation of democracy or elected leaders might seek to insulate their position from healthy political competition. Thus, there is space within normative democratic theory forjudges to protect democracy by intervening to strike down or declare impermissible certain measures or practices that are endangering democracy. The courts' work in this area should be restrained; the courts should see their role as subsidiary to the primary role for democratic process innovation belonging to elected officials. This thesis engages with academic debate about the legitimacy of judicial review in the sense of courts being empowered to strike down democratically enacted legislation. It is argued that the strongest case against judicial review does not defeat the above argument that the courts can overall help protect democracy via review of its processes. The thesis examines the electoral and referendum cases of the Irish High and Supreme Courts under the Constitution of Ireland. It is claimed that the courts have rightly embraced a power to conduct searching review of political processes. Although criticism of the courts' work arises at numerous points, the overall experience is one that shows that they have not excessively hindered the democratic working out of the shape of democratic government. The Irish experience does not show compelling reason to re-think, as a matter of constitutional design, the central claim that judicial review of political processes is a valuable institution in a democracy. Finally, partly because the shape of democracy is contested and evolving, there are not readily available precise instructions for the court to perform its role in protecting democracy. However, a number of principles can help guide the courts. These principles include judicial independence, minimalism, sensitivity to democratic structures as well as rights, and appreciation that the court's role is to protect democracy, not perfect it.