The Misconceived Quest for the Elusive Right Answer or Dedication to a Process, Not a Result

Abstract This chapter assesses whether the exercise of judicial discretion in answering pivotal legal questions is necessarily illegitimate in a constitutional democracy. It argues that legitimacy does not necessitate existing right answers and a rejection of judicial discretion. This argument rests on two factors: first, the difficulty of determining, in any particular case, whether there is a right answer and what that might be; and second, the fact that judicial discretion does not consist in unbridled choice on the part of one who exercises it. The answer to the interpretative concerns over constitutional judges should not be overcome by relying on the idea of a unique correct answer, but rather by a dedication to the decision-making process. The chapter then considers the idea of the 'Community Constitutional Morality', under which each legal system instantiate a set of moral values embedded in its constitution, from which judges should not depart. It is the constitution and the local social practice that determines such 'constitutional morality', and not an ideal set of external objective morality. This idea mitigates the 'counter-majoritarian' objection, as judicial review would reflect the commitments deeply held by the society where it is being exercised.