Harvard’s View of the Supreme Court: A Response

In this essay Professor Deutsch examines the legitimacy of judicial review, in part as a response to recent works by three faculty members of the Harvard Law School—John Hart Ely, Laurence Tribe, and Frank Michelman. Because of the nature of the response, this essay may also be read as a counterpoint to the articles by Professors Mark Tushnet and Gary Leedes presented in this issue. Professor Deutsch contends that questions of legitimacy are endemic to processes of political choice, whether legislative or judicial Thus, criticisms or justifications of judicial review are flawed to the extent they assume the burden of legitimacy to be different for courts than for other political actors in a democracy. For Professor Deutsch, the legitimacy of all political processes—that is , their ability to reach outcomes about which people may disagree without endangering fundamental institutional values—turns instead on whether those processes achieve what the polity acknowledges in retrospect to have been acceptable goals, a judgment that will itself be shaped by preceding political choices. Institutional features such as the traditions of judicial conference and opinion—and the special role of precedent identified by Professor Deutsch—help to ensure the legitimacy of judicial choices in conflict with those of representative bodies. While changes in modern society may render the task of understanding the precedential value of recent judicial opinions uncertain, it is still the bond of precedent that fortifies the foundations of judicial review