Suzanna Sherry

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Wake Forest L. Rev.

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For forty years, legal academics have been lost in a wilderness born of the countermajoritarian difficulty. Despite a two-century pedigree, we are still arguing about the legitimacy of judicial review and asking whether it is a curse or a blessing. Many of our most prominent constitutional scholars are mired in attempts to constrain judicial review so as to reconcile it with their idealized vision of a constitutional regime grounded in pure majoritarianism. None has succeeded. The few scholars who have attempted to move beyond the countermajoritarian difficulty face a different problem. As one scholar has argued, "[i]t takes a theory to beat a theory."1 Without a theory of constitutional interpretation-whether grounded in majoritarianism or in some other value-there arises the fear that judicial review is, as the legal realists supposed, merely the ad hoc implementation of the judges' own values. Theories of constitutional interpretation are supposed to constrain judicial discretion and ensure that the rule of law will prevail over the rules of men. Unfortunately, no constitutional theory proposed so far is either an accurate description of how judicial review works in practice or a useful prescription for constraining judges. The theories provide, at best, a partial window into the American judicial soul. The task for post-countermajoritarians, then, is to provide an attractive normative and descriptive picture of successful judicial review. For those of us who are legal pragmatists, this means providing a positive description of how pragmatist judges do or ought to judge. This Article is meant to be a first step in that direction. Judicial review as an institution may be a blessing, but particular instances of judicial review can be less salutary. I try here to identify conditions that make it more or less likely that the exercise of judicial review will be beneficial. The key, I believe, is a very old-fashioned notion: judicial character.

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