Understanding the third wave of judicial review: Afterword to the Foreword by Doreen Lustig and J. H. H. Weiler

In this short essay, I respond to the Foreword article by Doreen Lustig and Joseph Weiler. Doreen Lustig & J. H. H. Weiler, 'Judicial Review in the Contemporary World—Retrospective and Prospective', 16 (2) Int’l J. Const. L. 315 (2018). This important article maps three subsequent waves of judicial review: (1) courts ensuring that domestic laws conform to the constitution; (2) courts ensuring that domestic laws conform to international law, and (3) courts re-asserting the primacy of the constitution over international law. The article’s most important contribution is the mapping of the third wave, which is a response to the growing importance of international law in domestic legal orders, and entails national courts scrutinizing the constitutionality of international law along with the emergence of a judicial discourse that emphasizes national identity. This response focuses on the nature of the third wave. Specifically, while I believe that the third wave is important and real, I develop two slightly different hypotheses about its nature. My first conjecture is that some features that Lustig and Weiler regard as part of third wave are so closely connected to the second wave that they might not represent a new wave at all. Specifically, while the importance of international law in domestic legal orders has increased, the vast majority of countries have long had constitutional safeguards in place to ensure the primacy of the domestic constitution. As a result, when courts review the constitutionality of international law, they are not doing anything new or unusual: they are merely fulfilling their long-standing constitutional duty. My second conjecture relates to the causes of the third wave. While Lustig and Weiler argue that the discourse of the third wave emerged in response to the problems of the first two waves, I hypothesize that it might instead reflect broader social change. Specifically, as populist movements have been swept into power by appealing to nationalist rhetoric, courts may be responding to these larger societal trends.