Representation and Waldron's Objection to Judicial Review

Jeremy Waldron objects to judicial review of legislation onthe ground that it effectively accords the views of a few judges‘superior voting weight’ to those of ordinary citizens.This objection overlooks that representative government doesthe same. This article explores the concept of political representationand argues that delegates may be institutionally bound to heedthe convictions of their constituents, but they are not theirproxies. Rather, they are best viewed as their trustees. Theyought to decide according to what they think is in their constituents’interest. In this sense, a strong element of independent judgmentis involved in their institutional role. So, if we have no problemwith assigning their views superior voting weight, it shouldnot be thought particularly objectionable to give judges thesame power. What is more, once we acknowledge the independencethey enjoy, the question arises whether and by what institutionalmeans we ought to constrain and check their power. The judiciaryis well suited effectively to carry out this supervisory function,because it is immune from political pressure by the legislaturethat would reduce it to its instrument. Hence, in some casesthe institution of judicial review is morally justified.