Can Process Theory Constrain Courts?

The political process theory introduced by the Carolene Products footnote and developed through subsequent scholarship has shaped much of the modern constitutional landscape. Process theory posits that courts may justifiably intervene in the political arena when institutional obstacles impede corrective action by political actors themselves. Judged by this standard, the United States Supreme Court\u27s decision in Bush v. Gore was a failure, because the majority could not explain why its interference was necessary. More broadly, Bush v. Gore points to a central deficiency in process theory: it relies upon the Justices to guard against their own overreaching, but does not prescribe correctives to such overreaching when it occurs. This Essay argues that the legislative and executive branch cannot check judicial overreaching without threatening judicial independence. The authors suggest that principled criticism of judicial decisions by members of the legal academy can play a checking function but that much of the academic criticism of Bush v. Gore - especially those broadsides that accuse the majority Justices of subjective bad faith - will not be productive in that way. The authors then offer criteria for principled criticism