Notre Dame Journal of Law, Ethics and Public Policy
Issue 27, Pages 303-331
Many legal theorists and political philosophers—among them John Rawls, Ronald Dworkin, Amy Gutmann, Dennis Thompson, and Joshua Cohen—believe that decision making through deliberation is a normative ideal that yields both better laws as well as a positive transformation in its participants. They further have assumed the judiciary is perhaps best equipped to realize this kind of “deliberative democracy,” and that the courts can effectively provide an example for other, less deliberative branches of government to follow. This Essay argues, however, that judicial deliberation is both more complicated than is assumed by these theorists and also embodies a kind of deliberation different in nature than the one we would expect in a deliberative model. Indeed, contributions from social science suggest that judges are strategic (and oftentimes political) actors, and that their “deliberations” are more akin to bargaining than reasoned exchanges. In addition, the products of judicial decision making—the courts’ opinions—often fail to reflect true deliberative reasoning. Thus, the judiciary might in many ways be less deliberative than its sister branches. This is not to say that judicial processes cannot be modified to become more deliberative—and therefore more normatively desirable—but it does suggest that the assumption that the courts provide a deliberative model for other decision makers to follow might be based on a romanticized view of judicial processes, rather than on the way judges actually behave. This conclusion has, moreover, strong implications for the feasibility of deliberation as a decision-making mechanism.
Sen, Maya. "Courting Deliberation: The Role of Deliberative Democracy in the American Judicial System." Notre Dame Journal of Law, Ethics and Public Policy 27 (2013): 303-331.