Vanderbilt Law Review


Michael Conant

First Page



This review is a critique of the major themes in Democracy and Distrust: A Theory of Judicial Review,' by Professor John Hart Ely of Harvard Law School. Ely primarily addresses the amount of discretion exercised by Supreme Court justices in deciding constitutional cases, a fundamental issue since few scholars today would contest the actual existence of the judicial review power of the Court. Ely's thorough scholarship presents a fine discussion of the Court's legitimacy when it extends its discretion beyond the base of the actual constitutional language. Professor Ely misses the mark, however, in his argument that certain open-ended constitutional provisions exist and are necessary for the judicial safeguarding of important substantive rights. Contrary to Ely's contention, strict construction of constitutional language can be consistent with the need of the Court both to adjudicate those rights and at the same time to remain mindful of its counter majoritarian nature.