Two Concepts of Judicial Review and Two Senses of “Political”
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I. Two Concepts of Judicial Review
The concern raised by David Strauss’s Essay might be addressed by positing an alternative, broader conception of judicial review than the one he proposes, which is inspired by the influential footnote in the Carolene Products case. My alternative view on the scope and nature of judicial review does not grow out of experience with American Constitutional history (which I am no expert on), but rather from a philosophical perspective grounded in liberal and democratic theory and from a comparative constitutional experience drawn from the European and Israeli contexts. I will present my position through a defense of two distinctions that seem essential to me.
A. Narrow and Broad Conceptions
The first distinction relates to the understanding of judicial review and its scope. The concept of judicial review defended by David Strauss and extensively articulated by John Ely upholds that, in general, policy decisions should be made by politically accountable officials, not by courts, unless there are defects in the democratic political process that courts can fix.[1] The idea that judicial review exists to correct for failures of the democratic process is, according to Strauss, an appealing way of explaining why a system that is committed to democratic rule should give power to a politically unaccountable institution. Judicial review is therefore aimed at correcting the plight of “discrete and insular minorities,”[2] to whom the democratic process has failed to give a voice and a fair share of political power. As Strauss eloquently argues, this dominant view has degenerated into a competition among groups, including gun owners, religious groups, and whites claiming victimhood due to affirmative action, who use the courts to vie for victim status.[3] The dominant understanding of judicial review has thus given way to a zero-sum game in an ever-growing, polarized society.
This genuine concern arises from too narrow a conception of judicial review. In a broader, more liberal conception, like the one I will put forth, such a danger would not have emerged. According to this broader conception, the aim of judicial review is not to aid the democratic process and correct it when it fails, but rather to constitute its boundaries. Judicial review sets limits on which decisions the political process may legitimately decide. Here, judicial review aims to carve a broad human sphere that is immune from the intervention of the coercive machinery of the state and its organs. In this liberal conception, a state ought to safeguard the freedom of individuals and communities to define their way of life as they see fit, as long as the state grants the same right to others who live alongside them. This protected sphere, which includes such matters as religious practices and beliefs, sexual orientation, and modes of expression and thought, ought to be outside the reach of political intervention, even at the hands of democratically elected bodies.
Besides protecting the freedom of individuals and communities, judicial review should aim at safeguarding the equal standing of citizens even in the realm in which state action is legitimately called for. This view of judicial review aims to block discrimination in legislation and state action in the diverse and broad sphere in which the state operates. The essential role of judicial review of state actions is to protect the status of citizens as free and equal by limiting majoritarian decision-making. This role is far broader than the role of judicial review under the narrow conception that views its legitimate aim as correcting failures of the democratic process. In its broader liberal understanding, judicial review aims not at correcting and aiding the democratic process but at setting its very legitimate boundaries.
This broader conception of judicial review will apply not only to discrete and insular minorities to whom the political process has failed to give their share of political power, but also to any individual and community whose freedom to pursue its way of life is undermined. It might protect people or groups such as federal employees, university professors, and students, none of whom can be qualified as discrete and insular minorities. Under this broad conception, it is legitimate for a court to rule unconstitutional the current administration’s sanctions on law firms, even though law firms could not be conceived of as “discrete and insular minorities.”[4] No victim status is needed to be granted to an individual or a group in order to be protected from the state’s discriminatory actions. The degeneration of judicial review into a competition between groups seeking victim status is predicated on a narrow concept of judicial review, while in the broader understanding of judicial review, it seems to be avoidable.
It is, of course, a deeply contested question where the proper boundary of the political process ought to be drawn. Does it include, for example, abortion or gun ownership? When does a practice qualify as discriminatory? And given its highly contested nature, which institution ought to define and patrol the boundary of the political process? I will deal with this question in the second part of the Essay, but, before engaging with this question, a larger philosophical concern needs to be addressed that relates to the relationship between liberal commitments and democratic legitimacy.
B. Liberal Foundations of the Value of Democracy
The supposed advantage of the narrow conception of judicial review is its seeming harmony with democratic commitment. Under this view, the power given to an unaccountable and unelected body, such as the court, ought to be reduced to fixing and aiding the democratic process itself. Broadening the domain of judicial review beyond such limited scope seems to constitute an intervention of unelected elites, subverting the legitimate will of the majority, which is the supposed foundation of democracy. But from a liberal theoretical perspective, which I wish to defend, the limitations on the political process set by a broader conception of judicial review are not in tension with democratic commitments; such boundaries are essential to the very legitimacy of democracy. What is valuable and worth upholding in democracy intrinsically depends on liberal values and protections, as can be shown in exploring three features that inform the valuable aspects of democracy.
The first feature relates to the relationship between equality and majoritarianism. What is most attractive about democracy is that it aspires to give each citizen equal weight in shaping decisions that will define their fate. It rests on the principle of one person, one vote. Citizens in a democracy are not mere passive subjects of a state that determines their fate. Rather, each citizen has an equal share in addressing concerns that are crucial to their lives, such as the quality of public education, the structure and form of health services, the distribution of resources and tax policies, and geopolitical matters, sometimes reaching existential questions of life and death. Majority rule is therefore preceded by accepting the equal standing of all citizens. Thus, majority-elected powers that discriminate against individuals or minorities undermine the value that informs their very legitimacy. In limiting the political process when it discriminates, judicial review does not encroach on the legitimate power of the majority; rather, it defends what confers it with value.
The second feature that confers democracy with value and makes it an attractive way of organizing a political community is that it is based on ruling by words. A democratically elected party or person gains authority to lead by convincing a majority of citizens that they offer the right policies and that they might successfully implement them. Democratic rulers do not seize power through a military coup or by inheriting it from their parents; rather, they do so through argument. It is a precious achievement to establish a human form of collective organization in which argument plays such a vital role in granting political authority, and it is indeed a fragile and vulnerable achievement. Without liberal protections of freedom of thought and speech, without active opposition that can raise counter opinions and positions, the genuine weight of the word becomes vacuous. An argument without a counter-argument is mere propaganda; it does not convince people; it manipulates them or deceives them. A majority that limits freedom of thought and expression is not merely overstepping its proper authority; it undermines the value of democracy altogether, which rests on the power of arguments.
The third feature that makes democracy valuable is the way it offers a procedure for nonviolent adjudication of differences. The moment in which candidates who lose an election concede to their opponents is the most celebrated manifestation of this nonviolent procedure, especially when the one to concede is an incumbent. Democracy aims at assuring not only the victory of the majority but also guaranteeing the nonviolent acceptance of election results by the losing minority. Such an acceptance depends on the horizon given to the minority who are aware that they will have a second chance in the next election, and even more so, that they can raise objections and be active in preparing their alternative while being in opposition.
Another element that safeguards the nonviolent acceptance of democratic decisions by the losing minority inherently relates to the limits of the democratic process. If what was at stake in election outcomes was whether citizens can practice their religion or not, or other matters that relate to the very fabric of their identity, election results would not have been accepted by the minority without violence. The promise that citizens’ freedom to lead their lives as they see fit will be protected by the majority, and that they will be treated as equal citizens by the party and people elected to lead, is the cornerstone of the nonviolent feature of democratic decision-making. The protection of this freedom is therefore not an external constraint on legitimate democratic outcomes but rather an intrinsic liberal boundary that secures the value of democracy.
The philosophical defense of the narrow conception of judicial review rests on the supposed tension between the decisions made by democratically elected, accountable bodies and the limits set on them by non-elected, unaccountable courts. Consequently, judicial review is justified when it corrects and aids the democratic process itself and should be restricted to serving this goal. The alternative and broader conception of judicial review upholds that its aim is not to aid the political process, but to set the limits of such a process altogether and protect a sphere that it cannot reach. The three features that make democracy valuable illustrate that liberal protections of equal standing and freedom are inseparable in constituting what is worthy about democracy. The supposed tension between the democratic process and the limits set to it is, therefore, misguided.[5] The limits set upon the democratic process by liberal commitments are safeguards to its very legitimacy and value.
II. Two Senses of “Political”
A. Normative and Instrumental Senses of Politics
As mentioned before, the boundaries of the political process are deeply contested. One might agree in principle with the philosophical liberal approach that the very value of democracy rests on respecting citizens as equal and free and thus on setting limits on the political process. Nevertheless, the argument proceeds that courts ought not to serve as the institutions that patrol and define such boundaries, which ought to be left in the hands of the elected and accountable bodies. This view rests on the following important argument: We have learned that there is no such thing as a neutral interpretation of the Constitution. Judges do not bracket their political convictions in reading authoritative legal texts; they read them in light of such convictions. The judicial interpretive process is political through and through. It is therefore naïve and problematic to hold the view that courts can be trusted with constitutional interpretation that sets the boundaries of the political process since they are neutral bodies outside politics. Since adjudicating is political, it ought to be given to the bodies legitimately elected to engage in politics rather than to unelected, unaccountable elites that impose their political convictions on majority-elected bodies, subverting the democratic process. This is a powerful argument that was traditionally made by conservatives who called for judicial restraint, but it has lately been gaining currency among thinkers of the left.[6]
I think this important argument rests on some confusion about what is meant by the adjective “political.” In order to gain clarity on the matter, a distinction between two very different senses of “political” can be helpful. The first sense of the adjective “political” aims to reject the idea of value-neutral interpretive judgment. When it is said that a decision is “political,” it means that it is informed by broad, normative convictions. A decision on the constitutionality of a ban on abortion is therefore not an outcome of a neutral, genuine interpretation of the Constitution; it is influenced by the broader values of the judges concerning questions such as when human life begins. Courts, therefore, predictably divide on such matters along ideological lines—between conservatives and progressives, supporters of the free market and supporters of the welfare state, etc. Given the fact of the life tenure granted to judges, conservative judges might impose their views on progressive majorities and vice versa.
But there is a second, stronger sense of the adjective “political.” It aims to designate not an ideological normative commitment but the instrumental realm. In this second sense, when a decision or a statement is described as “political,” it means that it was a calculated step made to achieve some advantage in the competition for maintaining or gaining power. In its first sense, the adjective “political” stands in opposition to “value neutral”; in its second sense, the adjective stands in opposition to “principled.” As such, when a position adopted by political actors is understood as “political” in this second sense, it might be read as an attempt to appease an important block of voters, smear an opponent, or promote the interest of a powerful pressure group. The assertion that a statement, decision, or action was political—meaning instrumental—expresses the view that it was not motivated by genuine ideological commitments of political actors, if they have any such commitments.
The pervasiveness of this second sense of “political” in the realm of politics is rooted in a double reversal of means and ends that is immanent to politics. Power is an indispensable tool for advancing the collective good. It must therefore be organized and cultivated. However, political actors who have gained power and those around them who compete for it do not see political power exclusively from the public’s point of view as a means of promoting collective goods. Rather, the seekers and wielders of political power are vulnerable to seeing it from a more personal perspective. The privileges and status of political office can be intoxicating, transforming political authority into an end-in-itself for those seeking to gain or maintain it.
The second reversal of means and ends, deeply connected to the first, also looms over politics in its different manifestations. It involves the conversion of genuine ends, such as love, loyalty, and moral obligations, into means in the hands of power-wielders. Political life is rife with betrayals of allies, principles, and friends as means of competing for power. In its most extreme forms, instrumentalization can contaminate positions and actions relating to war and peace, where matters of life and death are at stake.[7] One such example—unfortunately, one among many—emerges in John Farrell’s biography of Richard Nixon, which seems to present strong evidence that during the presidential campaign in 1968, Nixon attempted to sabotage Johnson’s attempts to reach a ceasefire in Vietnam.[8] The allegation, which seems to be corroborated, uncovers that the Nixon campaign activated an indirect channel to the South Vietnamese President in an attempt to persuade him to refuse to sign the ceasefire agreement, promising him that when Nixon became President, a better deal would be reached. This intervention was motivated by the concern that a ceasefire might give an advantage to Hubert Humphrey, Nixon’s rival in the upcoming elections. This is how instrumentalization of what should not be instrumentalized becomes a defining and degrading feature of political action. This double conversion of means into ends and ends into means afflicts political life; it therefore presents a structural vulnerability of politics.
The adjective “political,” then, has two distinct meanings. One stands for a broad normative commitment in opposition to “value neutral,” and the other stands for the realm of instrumentalization in opposition to “principled.” In the first sense of “political,” debates about legislation and policies present alternative conceptions of what is morally required and what will better serve the common good. In the second sense of “political,” debates concerning legislation and policies are not concerned with the common good or what is morally recommended but instead center on sectoral interests or personal ambitions. Keeping in mind this distinction between the two meanings of the adjective “political,” we can revisit the question of which institution should be granted the ultimate authority on defining and patrolling the boundaries of the political process.
B. Elected and Non-Elected Bodies
The assertion that courts are “political”—that constitutional interpretation is motivated by ideological commitments and is therefore not neutral in any meaningful sense—is correct. It is difficult to imagine how such normative commitments could be avoided and whether they ought to be. Constitutional questions are inseparable from judgments about political morality, and their adjudication will eventually be informed by such commitments. However, when we approach the second sense of “political,” elected bodies are far more likely than courts to engage in “politics” as unprincipled instrumental conduct, aimed at maintaining or gaining power. Members of Congress who are competing in election cycles need to appease donors, the base, and other influential wielders of power to enhance their standing. In contrast, judges with life tenure gain some independence from the constant need to maintain their position and power. They are not immune altogether from such considerations, but the institutional arrangement that separates them from the immediate demands of the sphere of politics allows some level of immunity from the ongoing practice of “politics” in the second sense.
Given the structural vulnerability to instrumentalization of elected bodies that are periodically competing for power, it would be a mistake to give these bodies the role and power to define their own limits. It is reasonable to assume that elected politicians will betray democratic and liberal principles in ways that judges will not.
Hamilton’s assertion in The Federalist 78 that an independent judicial body should be the ultimate interpreter of the Constitution is therefore not undermined by the recognition that judicial decision-making is guided by political (in the first sense of the term) commitments.[9] What gives the courts some advantage in being the guardians of the borders of the political process is not their supposed neutrality, but rather their relative immunity from “politics” in the second, instrumental sense. Hamilton’s recommended preference that judges should not stand periodically for election further promotes judicial independence:
If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty . . . . That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence.[10]
Given the contested nature of the proper boundaries of the political process, courts might fail us in many ways, as the complex history of the practice of judicial review testifies. They might validate executive or legislative initiatives that ought to be overruled, or they might disqualify executive and legislative initiatives that could have served a valuable and important purpose. It is a price that is worth paying given the greater vulnerability of elected bodies to betraying liberal democratic principles when these clash with their power interests.[11] In times of breakdown of democratic and liberal values, the resilience of judges will prove to be a bit stronger.
One might argue that, in setting the court as the institution that overrides the decisions of an elected body that presumably represents the current majority, a breakdown is imminently set in motion. Courts rely on the support of the majority, and in confronting the public, they undermine what is left of their status. But supporters of judicial review, such as myself, appeal to the moral and political interests of majorities to embrace the constraints imposed on them by a body that they do not fully control. Such self-limitation is justified since they might eventually find themselves the victims of future majorities. But even more so, majorities often need the active support of minorities in order to face the shared challenges of political, social, and economic life. Without some independent guarantee that the majority can be constrained not to crush minorities, it will be difficult to safeguard that precious sense of shared political life that is so difficult to sustain and that democracies at their best aspire to achieve.
Copyright © 2026 Moshe Halbertal, Gruss Professor, NYU School of Law.
[1]. See John H. Ely, Democracy and Distrust: A Theory of Judicial Review 4 (1980).
[2]. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
[3]. See David A. Strauss, Polarization, Victimization, and Judicial Review, 113 Calif. L. Rev. 2155, 2156–57 (2026).
[4]. See, e.g., Susman Godfrey LLP v. Exec. Off. of the President, No. CV 25-1107 (LLA), 2025 WL 1113408, at *1 (D.D.C. Apr. 15, 2025); see also Carolene Prods. Co., 304 U.S. at 152 n.4.
[5]. Ronald Dworkin raised a similar argument concerning the liberal justification of judicial review. In his view, individuals or minorities are not bound by majorities that do not consider them as free and equal and, thus, do not give weight to their rights in the majoritarian decision-making process. I endorse a similar approach, though I am not focusing on the reasons for minorities or individuals to abide by majority decision-making but rather on what is altogether valuable in such a decision-making process. See Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution 1–38 (1996).
[6]. See Ryan D. Doerfler & Samuel Moyn, Democratizing the Supreme Court, 109 Calif. L. Rev. 1703, 1734–36 (2021).
[7]. For the analysis of double inversion at the heart of political pursuit of power and the grip of power, see Moshe Halbertal & Stephen Holmes, The Beginning of Politics: Power in the Biblical Book of Samuel 17–66 (2017).
[8]. See John A. Farrell, Richard Nixon: The Life 342–43 (2017).
[9]. See The Federalist No. 78 (Alexander Hamilton).
[10]. Id.
[11]. Jeremy Waldron, in his broad critique of judicial review, engaged with and rejected the argument that reliance on “elites” provides better safeguards of rights than reliance on the majority of citizens. See Jeremy Waldron, The Core of the Case Against Judicial Review, 115 Yale L.J. 1346, 1404–05 (2006). It is important to stress that my position is not based on greater trust in judicial “elites” or in their essential superiority over politically elected elites. The preference of the judiciary is based on the particular institutional arrangement of a body that is not exposed to repetitive competition for power.
