ABSTRACT
This chapter offers a critical account of a common strategy for defending judicial review from its democratic critics. We call this account “instruct judges.” Too many theorists defend judicial review by offering a vision of how judges should deploy that power. But judicial ethics is not substitution for a political defense of judicial review, which requires we assume that any power created can and will be misused. The “instruct judges” approach casts judges in the role of saving democracy from whatever it needs saving from, replicating the mistake identified in the preceding chapter—treating judicial review as an institution apart from democratic politics, rather than part of it. We close with an illustration of the flaws of this approach through an analysis of Ian Shapiro’s defense of Casey v. Planned Parenthood via an “instruct judges” approach.
