Judicial Review and American Constitutional Exceptionalism

This article challenges the conventional view of the pervasiveness of American-style judicial review. It questions why social movements contest constitutional meaning by fighting over judicial appointments in the United States, and why this strategy makes little sense in democracies that constitutionalized rights in the late twentieth century. The United States has been both a model and an anti-model in the global spread of judicial review, as the hope of Marbury (constitutionalized rights) has been tempered by the fear of Lochner [courts run amok). In reconciling Marbury and Lochner, other polities have adopted stronger mechanisms of judicial accountability that make it difficult for social movements to fight over appointments. Two particular models of judicial review are examined: the political court model, which relies on ex ante mechanisms of accountability such as supermajority appointment provisions; and the politicized rights model, which relies on post facto mechanisms of accountability such as statutory override provisions. The article concludes that while judicial review may have originated in the United States, it has thrived better abroad than at home