Democratic Dialogue in Theory

AuthorKent Roach
chapter thirteen
Democratic Dialogue in Theory
How can a judgment of the Supreme Court, the highest Court in
the land, be likened to part of a dialogue? The f‌inal judgments of
the f‌inal Court are not an invitation to fur ther conversation; they are
meant to be obeyed. Toll judges to stuff themselves and their judg-
ments and you may end up in jail. Is the idea of judicial review as dia-
logue not a fantasy of law professors, who are about the only ones in our
society who get to talk back after the Cour t makes its f‌inal decisions?
The key to understanding a court judgment, whether under the
common law or under a modern bill of rights, as a form of dialogue
is to understand and examine the entire legal process. The judgment
of the court is f‌inal and to be obeyed, as it determines the rights and
obligations of the parties to the dispute and serves as a precedent for
similar cases. At the same time, the legislature could always respond
to judge-made common law by enacting legislation that displaced the
Court’s decision. In three readings, a legislature could wipe out cen-
turies of common law by enacting a workers’ compensation scheme
or a criminal code. This process was democracy and it was dialogue.
Under the Ch arter and other modern bills of rights, legislatures can
still respond to court decisions by limiting or overriding the rights the
Court has proclaimed. In chapter 14, I will examine how democratic
dialogues among the court, the legislature, and society have worked in
practice under both the common law and the Ch art er. In this c hapter
I will consider the charge that seeing judicial review as par t of a dia-
logue with legislatures and society does not capture the authoritative,

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