Judicial Review and Democracy: Exposing a False Dilemma in the Discussion of Climate Litigation

One of the most stubborn criticisms of strategic climate litigation (SCL) points at the apparent lack of democratic legitimacy of court decisions. This paper argues that the ‘democratic criticism’ does not sufficiently engage with the empirical reality beyond the court room and the cyclical nature of democratic decision-making. It defends the thesis that SCL contributes – at least under certain circumstances – to democratic decision-making on climate issues in three inter-related ways: First, SCL allows for representation and participation of those that otherwise do not have a voice in public decision-making (minors, future generations, foreigners). Second, judicial review can address ‘pathologies’ of the political process (fortified vested interests; misinformation). Third, the judiciary has the important function of demanding justification for public decision-making. The paper concludes that, within the procedural boundaries of the judicial process, the judiciary fulfils in SCL a significant role in the democratic process.