Democratic dysfunction can arise in both 'at risk' and
well-functioning constitutional systems. It can threaten a system's
responsiveness to both minority rights claims and majoritarian
constitutional understandings. Responsive Judicial Review aims to
counter this dysfunction using examples from both the global north
and global south, including leading constitutional courts in the
US, UK, Canada, India, South Africa, and Colombia, as well as
select aspects of the constitutional jurisprudence of courts in
Australia, Fiji, Hong Kong, and Korea. In this book, Dixon argues
that courts should adopt a sufficiently 'dialogic' approach to
countering relevant democratic blockages and look for ways to
increase the actual and perceived legitimacy of their
decisions-through careful choices about their framing, and the
timing and selection of cases. By orienting judicial choices about
constitutional construction toward promoting democratic
responsiveness, or toward countering forms of democratic monopoly,
blind spots, and burdens of inertia, judicial review helps
safeguard a constitutional system's responsiveness to democratic
majority understandings. The idea of 'responsive' judicial review
encourages courts to engage with their own distinct institutional
position, and potential limits on their own capacity and
legitimacy. Dixon further explores the ways that this translates
into the embracing of a 'weakened' approach to judicial finality,
compared to the traditional US-model of judicial supremacy, as well
as a nuanced approach to the making of judicial implications, a
'calibrated' approach to judicial scrutiny or judgments about
proportionality, and an embrace of 'weak - strong' rather than
wholly weak or strong judicial remedies. Not all courts will be
equally well-placed to engage in review of this kind, or successful
at doing so. For responsive judicial review to succeed, it must be
sensitive to context-specific limitations of this kind.
Nevertheless, the idea of responsive judicial review is explicitly
normative and aspirational: it aims to provide a blueprint for how
courts should think about the practice of judicial review as they
strive to promote and protect democratic constitutional values.
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