Why expert judges defer to (almost) ignorant legislators: Accounting for the puzzle of judicial deference
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2006 by the Rector and Visitors of the University of Virginia. The preceding essay argued that Supreme Court justices behave strategically, depending on whether they are resolving constitutional or statutory questions. This essay addresses a court's relationship with the elected branches from a different angle, one that considers when judges who want the law to reflect their views nevertheless will defer to legislatures. A strong reason for judicial deference is anchored in the institutional characteristics of legislatures, courts, and their interaction. Policy-oriented judges, it is argued, will rationally defer to legislative decisions even if the judges have greater expertise than any individual legislator, because legislatures can aggregate information as well as aggregate preferences. The implications of this argument also are consistent with "twotiered" judicial review in which courts sometimes review legislation deferentially and sometimes review legislation with heightened scrutiny.
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Institutional Games and the U.S. Supreme Court