“For a long season,” writes Professor Richard Fallon in a major article just published in the Harvard Law Review, the desirability of judicial review of legislation was “a complacent assumption” of American constitutional, political and moral thought.

That season, it seems, is over.

As Fallon observes, some distinguished critics have lately begun to argue for a fundamental rethinking of the role of courts in a democratic society, including, in some cases, the total abolition of judicial review.

If that idea seems unthinkable to most lawyers, it has gained enough traction among some legal scholars that Fallon, for one, takes it very seriously, and is complacent no longer.

“I now believe that the affirmative case for judicial review needs to be partially revised if [it] is to be defended successfully on the moral high ground of liberal political theory,” he writes in his article, The Core of an Uneasy Case for Judicial Review. “Uneasy,” he explains, because he recognizes that his case rests on some premises and assumptions that “would be difficult to establish with knock-down, rationally irresistible arguments.”

Fallon’s article offers that defense, taking on the most prominent of the recent critics of judicial review, NYU law professor and philosopher Jeremy Waldron and his influential 2006 Yale Law Journal piece, The Core of the Case Against Judicial Review.

Fallon doesn’t take issue with Waldron’s main argument—that courts are no better than legislatures at defining rights correctly. Rather, conceding that point for the sake of the discussion, Fallon answers that the crucial question is not whether courts or legislatures are less likely to err, but which kinds of errors each branch is more likely to commit—those that result in rights being overprotected, or those that result in rights being infringed or underenforced.

Insofar as judicial review can be designed to prevent failures to protect rights adequately, Fallon argues, then it may be supportable. One of the premises on which his argument rests, he writes, is that “courts are likely to have a distinct perspective, involving both a focus on particular facts and a sensitivity to some actual or reasonably arguable violations that legislatures would fail to apprehend.”

“Judicial review may provide a distinctively valuable hedge against errors of underenforcement,” Fallon writes. Furthermore, on the assumption that two is better than one, both institutions—legislatures and courts—should be enlisted in the cause of rights protection “because it is morally more troublesome for fundamental rights to be underenforced than overenforced.”