The Mighty Problem Continues

In 1979, Mauro Cappelletti entitled a pioneering comparative study “The Mighty Problem” of constitutional judicial review. Since then, review has become even mightier and even more problematic in a number of ways, as noted in the Introduction to this volume and its subsequent chapters. Initially, the problem was largely seen as a normative one about the compatibility between majoritarian democracy and a judicial veto power over legislation. Put somewhat differently, a strong measure of judicial independence might be a prerequisite to judicial review as an instrument for limiting government and protecting rights. Such review necessarily involved some judicial lawmaking. In a democracy, lawmakers should be accountable to the electorate. How could judicial independence and accountability for lawmaking be accommodated to one another? At a more rough-and-ready empirical level, when, where, and why did the powers that be – whoever they might be – allow a handful of judges without purse or sword to get away with making major policy decisions? For as this volume insists, judicial review courts are often consequential. Let us suppose that we wished to construct a causal model or theory for relatively long-term, successful judicial review. By success, I mean a reviewing court with some decisions entailing substantial changes in public policy that are obeyed by other policy makers and implementers. Although this volume seems to yearn for a developmental model, suppose instead we attempted a more static model to state in a parsimonious way the necessary and/or sufficient conditions under which relatively long-term, successful judicial review would, or at least could, flourish.