Accounting for the Puzzle of Judicial Deference Chapter

Strategic behavior by judges is one way they can pursue their policy preferences in constitutional cases. Justices take into account the competing preferences of the elected branches to make feasible policy gains consistent with judicial views. So why, instead, would judges everdeferto legislatures? Judges often apply a deferential “rationality” standard to review the constitutionality of challenged legislation. Under this standard, judges do not directly decide whether they think legislation is constitutional or not. Rather, as Justice Stephen Breyer put it, judges review the constitutionality of legislation “at one remove” (United States v. Lopez514 U.S. 549 [1995], 617).