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by Andrei Marmor
University of Southern California - Gould School of Law
February 23, 2015 USC Law Legal Studies Paper No. 15-8
One of the main arguments in support of constitutional judicial review points to the need to curtail the legal and political power of majority rule instantiated by democratic legislative institutions. This article aims to challenge the counter majoritarian argument for judicial review by showing that there is very little difference, at least morally speaking, between the current structure of constitutional judicial review in the US, and a system that would impose limits on majoritarian decisions procedures by an entirely randomized mechanism. The argument is based on a hypothetical model of a randomized system of judicial review, and proceeds to show that between the actual practices of judicial review in the US, and the hypothetical randomized model, there is not much to recommend the former. The current system of constitutional judicial review is fraught with many arbitrary elements, to an extent that makes the system only marginally better, if at all, compared with an overtly and blatantly randomized system.