Constitutional Dialogue and Judicial Review
Among many other interesting developments, the new dialogical practice helps us revise traditional approaches to judicial review. The first thing to say, in this respect, is that through the introduction of the dialogic approach, judges tend to lose the prerogative they hold today to pronounce the “last institutional word” thereby “thwart[ing] the will...
of the actual people of the here and now” (Bickel 1962: 17; Kramer 2004, 2005). The dialogic model conceives of the institutional system in ways that significantly differ from the traditional one, where judicial review is reduced to the binary options of either upholding or invalidating a statute.[188]Clearly, this presentation is not restricted to discussions about judicial review. However, it is important to have in mind that what dialogic constitutionalism proposes significantly differs from what many traditional and well-known approaches to judicial review have proposed. Let me illustrate this with two quite opposite cases, among the many that one could choose from. The dialogic approach diverges, for example, from Alexander Bickel’s view, which invites judges to step back and exercise their so-called passive virtues, thus allowing private agents to work out, by themselves, solutions for their legal problems (Bickel 1962). Contrary to this view, dialogic constitutionalism requires judges to be more active, particularly taking into account their unique institutional position. In effect, judges have direct and permanent access to the complaints of all those who consider themselves to have been improperly treated by the majoritarian decision-making process. This is why dialogic constitutionalism expects judges to enrich the collective conversation with the claims of all those unheard or improperly dismissed voices.[189] As Ronald Krotoszynski has put it, it is not difficult to recognize “the superiority of dialogue to the passive virtues” (Krotoszynski 1998, 57). For him, the dialogic model “better serves the value of interbranch comity than judicial silence followed by invalidation of legislative work product” (ibid.).
The dialogic view also differs from Guido Calabresi’s approach, which is quite different from the one that Bickel proposed. Calabresi has once maintained that judges should be authorized to repeal obsolete legislation (Calabresi 1985, 1991, 2012).[190] In his words, courts should be given “the power by legislatures to order the sunset of a statute. If the legislature disagreed with a court’s determination, they would of course be empowered to overrule the court and reenact the statute. Whether and when a law should sunset depends on the law itself. Some become obsolete almost immediately, while others remain relevant for a very long time” (Calabresi 2012). This view would require judges to be very active: judges would thus become profoundly and constantly engaged with the legislative process. However, and for different reasons, Calabresi’s views seems also wrong, from a dialogic perspective. Although it is totally fine to have judges deeply engaged in the public decisionmaking process, it seems erroneous to foster their participation in the way Calabresi does. In fact, Calabresi’s suggestion seems to be still too much attached to the traditional system of judicial review, where judges either uphold or invalidate a statute. The methods and procedures of a collective conversation, however, are and should be fundamentally different from the ones that presently characterize our institutional system.[191] The existing instruments appear to be more capable of favouring a confrontation between unequally situated powers, than of facilitating a conversation between equals (we will come back to this point).
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