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John Hart Ely's Democracy and Distrust' culminates a tradition of scholarly attempts to establish modes of judicial review that leave the choice and accommodation of values to legislatures and limit judicial intervention to assuring that legislatures go about their business efficiently, representatively, and (in a quite limited sense) fairly.Like others before him, Professor Ely derives this judicial role both negatively-from the incompetence of courts to discover fundamental values and measure legislative policies against themand affirmatively-from a theory of representative democracy and judges' asserted competence to engage in what he calls "representation-reinforcing" modes of judicial review.In this essay I do not wish to challenge either Professor Ely's political premises or his belief that judges are unable to derive and enforce fundamental values.Rather, I wish to question a central claim of Democracy and Distrust: that courts are more competent to engage in representation-reinforcing judicial review, which Professor Ely embraces, than in fundamental values review, which he scorns.Contrariwise, I think that these modes of adjudication are inseparable siamese twins, and that if Professor Ely has dealt a fatal blow to one, the other must succumb as well.My argument can be phrased in either of two ways.First, most instances of representation-reinforcing review demand value judgments not different in kind or scope from the fundamental values sort.Second, the parties' claims in fundamental values cases are often directly translatable into representation-reinforcing claims.The lawyer's or judge's choice of fundamental values or representation-reinforcing rhetoric is often a matter of preference, happenstance, or tradition.Of course, the very existence of alternative rhetorical traditions might indicate a genuine difference between these two kinds of claims.But the real contribution of Democracy and Distrust consists in its going behind or beyond tradition to establish the conditions for judicial review in functional and theoretical terms.And it is just in these terms that the choice between the language of representation-reinforcing and fundamental values becomes arbitrary.
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