Affirming Lochner’s Major Premise: The Superiority of Political Judges over Deferential Judges.

We compare the impact of ‘deferential’ judicial review and ‘Lochnerized’ judicial review on legislative outcomes. In the ‘Lochnerized’ system, judges use their veto power to substitute their class-based personal policy preferences for the policies enacted by the legislature. In the deferential system, in contrast, judges defer to the legislature in ordinary matters of socioeconomic policy and do not strike down the legislation. To compare the two types of judicial regimes, we develop a simple game-theoretic model with a legislature composed of a majority and minority party, a set of lower courts, and an appellate court. The legislative majority initially chooses whether to enact a policy. Any policy it enacts could be reviewed by a lower court. Some lower court decisions are in turn successfully appealed to the appellate court. We first identify how legislative anticipation of non-deferential judicial review affects legislative decisions. Secondly, we show that judicial review provided by an activist, politicized judiciary in which every judicial decision is politically motivated and legally unprincipled nonetheless secures important constitutional values better than deferential judicial review. [ABSTRACT FROM AUTHOR]