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Judges in Contemporary Democracy: An International Conversation

The inherent premise underlying Judges in Contemporary Democracy: An International Conversation may be stated simply: When judges talk, people listen. The attention is entirely deserved; the power of the judge in modern constitutional democracies, particularly those with provisions for judicial review, is extensive. Concordantly, the authority of the constitutional judge long has been in tension with democratic structure, where the will of the people, expressed through legislative act, otherwise would be considered supreme. What power does the judge have to determine the contours of constitutional imperatives, especially if judicial interpretation represents a divergence from popular sentiment and legislative decree? How can she purport to have an exclusive interpretative license on what otherwise might be thought of as common province, i.e., the securing terms of a shared constitution? The questions of legitimacy surrounding the countermajoritarian potential of judges exercising (or merely asserting) the power of judicial review have become particularly pressing following the contemporary incorporation of forms of judicial review throughout Western European countries in the latter half of the past century. No longer a vestige of American exceptionalism, judicial review-and the accordant power of the judge-has become an integral feature of the modern democratic state.