Ever since legal realism triumphed over legal classicism in 1937, constitutional theorists have focused upon creating a theory that legitimizes judicial review by constraining judicial discretion within neutral limits. These scholars argue that "something" outside of the judges themselves must be found to constrain judicial discretion because, otherwise, unconstrained political decision-making violates democratic principles. In this persuasive book, Peretti argues that this legitimacy concern should be discarded and we should embrace the concept of a court deciding constitutional cases based upon political values and policy preferences.



Peretti first examines the various neutralist theories-including originalism, process theory, and noninterpretive theories-and finds that none are actually neutral in either theory or practice. Each theory is capable of a broad range of outcomes and thus judicial discretion is not constrained. After this excursion into constitutional theory, Peretti turns to empirical analysis in order to test the supposed deficiencies of a political court. She argues that democratic ends, political representation and responsiveness, are actually served by value-voting. Such voting relies upon consensus building and triggers political checks upon the Court's authority. Further, Peretti argues that the legitimacy problem is actually backwards: the public does not hold the Court in high regard and when it judges the Court it does so based on the outcome of the case and not reasoning, thus legitimacy is actually enhanced by embracing policy motivation since policy outcome is what the public considers anyway. Finally, Peretti argues that constitutional theorists base their concern on a mistaken definition of democracy. She argues that these theorists mistakenly rely upon majoritarian definitions of democracy that fail to account for our systems nonmajoritarian orientation. Additionally, Peretti argues that pluralist theory supports a political court because it adds to the number of arenas in which groups can regularly advance their interests.



Peretti's book is controversial and will incite much debate, which is exactly why it should be read. Lawyers and law students especially should read it because Peretti accumulates extensive empirical research on the Court's effectiveness that lawyers tend to ignore. I strongly recommend this provocative book to any serious student of the Court, constitutional law, and judicial politics.