This essay offers a comment on Professor Rosalind Dixon's forthcoming book 'Democracy and Dysfunction: Towards a Responsive Theory of Judicial Review'.

Professor Dixon’s work is a masterclass in comparative constitutional law scholarship. It is nuanced in its methodology, rich in contextual qualitative analysis, and deeply learned. In a Neo-Elyian spirit it aims to offer general guidance for courts as they seek to construe a democratic constitution and other relevant legal materials to make judicial determinations that counter risks of anti-democratic monopoly power and democratic blind spots and burdens of inertia, and calibrate the scope and intensity of constitutional doctrines accordingly.

Professor Dixon notes that successfully implementing the core tenets of comparative political process theory demands a particular judicial temperament and disposition of prudence when assessing whether political branch action represents a threat to the democratic core.

In this essay, I offer two examples drawn from long-running constitutional debates to highlight the wisdom of Professor Dixon’s emphasis on judicial caution and humility. I focus on debates concerning legislative delegation of broad statutory authority to the executive and the appropriate level of political executive control over bureaucracies.

Both examples implicate concerns about institutional checks and balances and the risks of institutional monopolization of power important to Professor Dixon’s minimum core. I argue these examples highlight the serious risks inherent in judges engaging in an imprudent and blinkered assessment of potential political risks posed to the minimum democratic core, and that such analysis can leave judges blind to other political risks to the common good and democratic responsiveness their actions may exacerbate.