By: James Thuo Gathii
This Article responds to Samuel Moyn’s critique of judicial review and his endorsement of judicial modesty as an alternative. By invoking the countermajoritarian difficulty, Moyn argues that judicial overreach has become an unwelcome global phenomenon that should be reexamined and curbed. I reject Moyn’s claim that this kind of judicial modesty should define the role of courts for all time. By applying the countermajoritarian difficulty beyond its United States origins, Moyn assumes it is an unproblematic baseline against which to measure the role of courts globally. Moyn’s vision says nothing about when it would be appropriate for courts to rule against legislative majorities. This view of judicial modesty is defied in constitutions such as those of South Africa and Kenya, which explicitly provide for their manner of interpretation and empower courts to “develop” the law. In the often revolutionary conditions of new African democracies, the functions expected of judicial review have a significant role both in constituting the new order as well as in disabling the continuation of the old order.