The liberties guaranteed by the Constitution of the United States—including freedom of speech, freedom of association, the free exercise of religion, and the guarantees of due process and equal protection under law—are designed to ensure to each individual the ability to pursue his or her own interests free from improper interference by the government. Since the government in a democracy is directed by the preferences of the majority, another way of describing the function of the entrenched liberty protections in the Constitution is to say that they protect the minority against the abuse of political power by the majority. The Constitution’s liberty guarantees are enforced by the federal courts through the exercise of the power of judicial review. In exercising this power, the federal courts therefore perform an essential role in securing the liberties that are fundamental to the democratic political tradition. If it is true that even a majority vote cannot justify the legitimacy of legislation inconsistent with respect for these liberties, then the exercise of the power of judicial review to enforce constitutionally protected rights is essential to ensure that the power of the majority is exercised legitimately.

Critics argue that assigning to the courts the authority to resolve certain categories of contested questions of value will lead to judicial overreach and unjustified interference with the majority’s exercise of power. This argument is deeply misleading. The most salient instances of judicial failure have involved judicial restraint and deference to the other branches of government rather than the exercise of judicial power. The cases that constitute paradigm examples of judicial failure—Plessy, Korematsu, Bowers v. Hardwick—involved excessive judicial deference and inaction, not judicial overreach. While critics argue that intervention by the courts to protect rights may produce bad consequences, the consequences of failure to intervene are tangibly more significant than the consequences of intervention. While consequentialist objections to judicial review do not, I have argued, undermine or qualify the arguments for the value and importance of the institution of judicial review, recent instances of judicial overreach point to the need for greater accountability. Nominees must be required to provide full disclosure of their judicial philosophy and approach to judicial reasoning, and members of the Senate must give that information significant weight in their deliberations.

A theory that takes seriously Waldron’s intuition that a majority is not "entitled to impose a decision on others, simply on the ground that there are more individuals in favor of the decision than against it" requires an account of the conditions under which majority support does constitute adequate justification for the legitimate exercise of political power. If this claim is true, however, then it would seem that a legitimate democratic form of government must regulate the influence on social choice of preferences inconsistent with the foundational commitments of democracy. Only if political institutions—in particular, rights—perform such a function will it be possible to "mak[e] sense of the democratic quality of public will." It is therefore implicit in Waldron’s own view that regulation of the relation between preferences and the community’s political choices is a constitutive condition of democracy. In offering an account of the institutional arrangements necessary to regulate the relation between preferences and social choice, then, the constitutionalist view is more responsive to the theoretical challenges raised by the fact of pluralism than the interpretation offered by majoritarians.

The majoritarian critique of judicial review asserts that democracies should assign the power to resolve questions regarding the nature and extent of individual rights to the majority and their representatives. The literature addressing these issues, however, suffers from a consistent failure to examine carefully basic questions about the nature of democracy. The western democratic tradition works from the foundational intuition that legitimate power derives from the consent of the governed. That intuition justifies majority rule as an important element of social choice, but it also requires the entrenchment of rights protections as an element of any acceptable set of political institutions. If entrenched rights are to provide effective protections to liberty interests, they must be enforced by an institution that is not subject to majority control. Democratic institutions must therefore include an institution independent of majority control whose purpose is to enforce rights protections against the majority. While this argument does not establish that the judiciary is the only institution appropriate for this role, it does demonstrate the essential role played in democratic institutions by a rights-enforcing institution that is independent of majority control.

If a healthy democracy requires entrenched protections of fundamental liberties, what form of institutions is required to realize these protections? The mere idea of entrenching institutional protections of liberties in a democracy suggests the necessity of certain institutional features. First, since liberty protections in a democracy are protections against the will of the majority, an institution designed to protect liberties must be insulated from majority control. Second, since the officials of the institution chosen to enforce these protections must understand both the substance of the liberties protected and the potential political and institutional threats that may undermine those liberties, the members of that institution must possess expertise in the analysis of legal and political concepts and of institutional arrangements. Third, since the institution must be designed to resist partisan pressures, the members of this institution must be disciplined by shared professional norms and standards that are independent of partisan connections. Finally, it is desirable that members of the institution include a diverse group that encompasses a representative sample of those groups that make up the society. I argue that the protection of rights by courts exercising the power of judicial review possesses these features more fully than the feasible alternatives.

The medieval common law offered few public law remedies, the chief being the negative principle that the king could do no wrong: he could not be sued, but his unlawful actions or commands were void. A new chapter began in the sixteenth century with the development of habeas corpus as a means of challenging imprisonment. Since government rested ultimately on the power to lock people up, here at last was a means of reviewing abuses of authority. Habeas corpus was augmented in the seventeenth century by mandamus and certiorari, to review encroachments on other kinds of liberty. Though the new remedies were used to challenge imprisonment by prerogative courts and other governmental actions, the judges sought to make them palatable to the crown by representing them as the exercise (on the king’s behalf) of a higher prerogative. They were ‘prerogative writs’, capable (in Coke’s words) of correcting ‘any manner of misgovernment’.

In this chapter, we rely upon two experiments to demonstrate that the public withdraws acceptance of executive actions implemented through contravention – over the objection of a court – but only if that court has a high level of judicial independence. But, if executives contravene a low independence court, it is as if the court had not acted: there is no difference in the public’s level of acceptance. Additionally, we find no evidence in any of our quartet of countries that judicial approval improves the public’s acceptance of an executive’s policy. Contrary to fears that citizens may blindly follow courts and adjust their opinions based on a court’s ruling, we find no evidence that even widely-respected courts are able to increase citizens’ support for an executive action by endorsing it.

In this chapter, we examine the effects of judicial review across citizens. We find that, when courts enjoy high levels of judicial independence, their rulings’ efficacy is amplified among citizens who have a strong regard for the rule of law; when citizens have low levels of support for the rule of law, the effect of a court’s ruling is muted. For courts that lack judicial independence, even those citizens who hold the rule of law in the highest regard are unaffected by a court’s determination that that an executive’s behavior is unconstitutional. Additionally, we explain how the efficacy of judicial review varies based on the public’s approval of the executive whose policy the court reviews. Notably, we find that the public opinion constraint on executives comes from their supporters, not their opponents. These findings point to an important implication: political sympathy for the executive may not necessarily be the Achilles heel of judicial efficacy it is often portrayed to be.

This chapter ties together our theory and analyses to draw general conclusions and to chart the path for future research. We discuss the implications of our findings for the broad set of research areas we engage, including theories of judicial independence, models of executive unilateral action, and the relationship between the rule of law and democratic entrenchment. We highlight strengths and weaknesses of our findings and research design and suggest paths for other scholars to move this research forward. We see many additional opportunities to interrogate our theory and its implications in other places, on other issues, and in other settings to facilitate a broader understanding of when and how courts are efficacious.

This chapter presents our research design. First, in recognition of our theory’s emphasis on judicial independence, we select four cases – the United States, Germany, Hungary, and Poland – that vary in their levels of judicial independence but share important political, legal, and socio-economic characteristics. We use surveys of elites and the public to demonstrate that variation in judicial independence is observed by experts and citizens alike. Second, the chapter establishes the crucial role the COVID-19 pandemic plays in our research design. The global pandemic presented a unique and fleeting opportunity to probe citizens’ reactions to rule-of-law violations because it produced real threats to the rule of law in ways that were felt simultaneously and similarly around the world. Third, we discuss the benefits of using survey experiments for a study like ours. Finally, we introduce the four countries in detail, describing their general political characteristics, the institutional characteristics of their constitutional courts, and their handling of the pandemic.

Even where a public consensus exists about the appropriate bounds of constitutional action, citizens’ capacity to punish executive overreach is not guaranteed. People often lack information about possible constitutional transgressions, and imposing meaningful political penalties for overreach requires coordinated action among citizens. We argue that courts are key to overcoming these obstacles: under the right conditions, courts, through the use of judicial review, are uniquely positioned to alert the public of constitutional transgressions and thereby transform the public’s support for the rule of law into a guardrail against executive overreach. We suggest judicial independence enhances the ability of courts to signal that an executive has gone too far. By contrast, courts with low levels of judicial independence are impotent: their decisions are not credible enough to affect citizens’ attitudes. We also expect the rulings of independent courts to be most effective among citizens who have a high level of support for the rule of law and to persist even in the face of stark partisan polarization.

We open the book by discussing the rise of constitutional courts and judicial review, emphasizing their stated responsibility as guardians of the constitutional system. We discuss existing theories of judicial power and independence, highlighting the concept of judicial efficacy: the ability of courts to create political penalties for elites who fail to abide by the constitutional limits on their authority. We discuss different types of penalties courts might levy and explain why attitudinal costs – particularly a loss of public support – represent the cornerstone of judicial efficacy. We then provide a summary of our argument, contrasting our theory of judicial efficacy with existing accounts of judicial power and impact. The chapter concludes with a roadmap for the rest of the book and a summary of our key findings.