The dual meaning of evidence-based judicial review of legislation

ABSTRACT

This article contributes to the nascent debate about the globally emerging, yet largely undefined, phenomenon of evidence-based judicial review of legislation, by offering a novel conceptualisation of evidence-based judicial review. It argues that evidence-based judicial review can have two related, but very different, meanings: one in which the judicial decision determining constitutionality of legislation is a product of independent judicial evidence-based decision-making; and the other in which the judicial decision on constitutionality of legislation focuses on evidence about the question of whether the legislation was a product of legislative evidence-based decision-making. The article then employs this novel insight about the overlooked dual meaning of evidence-based judicial review to shed new light on some of the major debates about this phenomenon, such as: whether it should be understood as part of substantive or procedural judicial review; the relationship between evidence-based judicial review and evidence-based law-making; and the role of legislative findings in constitutional adjudication.

KEYWORDS:

• Evidence-based judicial review
• evidence-based law-making
• rational law-making
• due process of law-making
• legislative findings
• congressional findings
• substantive judicial review
• procedural judicial review
• semi-procedural judicial review

Acknowledgements

For helpful comments on previous drafts, I thank Ronan Cormacain, the two anonymous reviewers, the participants of the International Workshop on Evidence-based Review of Legislation at Erlangen-Nuremberg University and particularly the conveners of this conference, Roland Ismer, Klaus Meßerschmidt and Christian von Hesler. Thanks as well to my research assistant, Avi Dell, for meticulous Bluebooking. I would also like to acknowledge my intellectual debt to Hans Linde and Dan Coenen, whose scholarship inspired my thinking, as well as to critics of my earlier scholarship on this issue, particularly Alberto Alemanno and Mark Kende, for pushing me to critically reassess my thinking.

Disclosure statement

No potential conflict of interest was reported by the authors.

ORCID

Ittai Bar-Siman-Tov http://orcid.org/0000-0001-8110-639X

Notes

1 A. Alemanno, ‘The Emergence of the Evidence-Based Judicial Reflex: A Response to Bar-Siman-Tov's Semiprocedural Review’ (2013) 1 The Theory and Practice of Legislation 327. See also the articles in this special issue dedicated to evidence-based judicial review of legislation.

2 Alemanno (n 1) 340.

3 See, for example, I. Bar-Siman-Tov, ‘Semiprocedural Judicial Review’ (2012) 6 Legisprudence 271; Alemanno (n 1); M. Tushnet, Advanced Introduction to Comparative Constitutional Law (Edward Elgar 2014) 88–91.

4 D.T. Coenen, ‘The Pros and Cons of Politically Reversible Semisubstantive Constitutional Rules’ (2009) 77 Fordham Law Review 2835, 2886; I. Bar-Siman-Tov, ‘The Puzzling Resistance to Judicial Review of the Legislative Process’ (2011) 91 Boston University Law Review 1915, 1917.

5 K. Meßerschmidt, ‘The Race to Rationality Review and the Score of the German Federal Constitutional Court’ (2012) 6 Legisprudence 347, 351.

6 See, for example, E. Berger, ‘Deference Determinations and Stealth Constitutional Decision Making’ (2012) 98 Iowa Law Review 645, 467–462; J. Gerards, ‘Procedural Review by the ECtHR: A Typology’ in E. Brems and J.H. Gerards (eds), Procedural Review in European Fundamental Rights Cases (Cambridge University Press 2016); I. Bar-Siman-Tov, ‘Procedural Review and Substantive Review: Can the Two Be Combined? Towards a Semiprocedural Model in Israel’ in K. Azulay et al. (eds), Essays in Honor of Chief-Justice Dorit Beinisch (Bar-Ilan University Press & Nevo 2016); P. Popelier and J. De Jaegere, ‘Evidence-based Judicial Review of Legislation in Divided States: The Belgian Case’ in this issue; S. Choudhry, ‘So What Is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter's Section 1’ (2006) 34 Supreme Court Law Review 501.

7 Bar-Siman-Tov (n 3).

8 J.O. McGinnis and C.W. Mulaney, ‘Judging Facts Like Law’ (2008) 25 Constitutional Commentary 69, 69.

9 Alemanno (n 1); R.K. Lee, ‘Fisher v. University of Texas at Austin: Promoting Full Judicial Review and Process in Applying Strict Scrutiny’ (2013) 4 Houston Law Review: Off the Record 33; J. Öberg, Limits to EU Powers: A Case Study on Individual Criminal Sanctions for the Enforcement of EU Law (European University Institute 2014). A wider search for ‘evidence-based judicial’ revealed that one area in which there is discussion of evidence-based judicial discretion or decision-making is the sentencing context, as in the oft-cited M.A. Wolff, ‘Evidence-based Judicial Discretion: Promoting Public Safety through State Sentencing Reform’ (2008) 83 New York University Law Review 1389.

10 ‘Evidence-based regulation’ produced 483 results, ‘evidence-based legislation’ yielded 176 results, ‘evidence-based lawmaking’ yielded 56 results, and ‘evidence-based law-making’ yielded 34 results.

11 All searches conducted on Google Scholar on 12 June 2016.

12 Cf. R. van Gestel and J. de Poorter, ‘Putting Evidence-based Law Making to the Test: Judicial Review of Legislative Rationality’ in this issue (‘The idea of “evidence-based law making” is relatively new, but draws on an extensive body of “evidence-based” areas, such as: evidence-based medicine, evidence-based policy, evidence-based management and so on.’).

13 Alemanno (n 1) 340.

14 A.C. Bryant, ‘The Empirical Judiciary’ (2009) 25 Constitutional Commentary 467, 468.

15 D.L. Sackett and others, ‘Evidence Based Medicine: What It Is and What It Isn’t’ (1996) 312 British Medical Journal 71.

16 J.A. Muir Gray, ‘Evidence Based Policy Making’ (2004) 329 British Medical Journal 988.

17 Ibid. See also, for example, B.W. Head, ‘Three Lenses of Evidence-Based Policy’ (2008) 67 Australian Journal of Public Administration 1; F. Porzsolt and others, ‘Evidence-Based Decision Making – the Six Step Approach’ (2003) 8 Evidence-Based Medicine 165.

18 See, for example, J. Pfeffer and R.I. Sutton, ‘Evidence-Based Management’ (2006) 2006 Harvard Business Review; D.M. Rousseau, ‘Is There Such a Thing as “Evidence-Based Management”?’ (2006) 31 Academy of Management Review 256; B.W. Head, ‘Three Lenses of Evidence-Based Policy’ (2008) 67 Australian Journal of Public Administration 1; C.H. Weiss and others, ‘The Fairy Godmother – and Her Warts: Making the Dream of Evidence-Based Policy Come True’ (2008) 29 American Journal of Evaluation 29. R. Pawson, Evidence-Based Policy: A Realist Perspective (SAGE 2006).

19 van Gestel and de Poorter (n 12). See also R. van Gestel, ‘Evidence-based Lawmaking and the Quality of Legislation. Regulatory Impact Assessments in the European Union and the Netherlands’ in H. Schäffer and J. Iliopoulos-Strangas (eds), State Modernization in Europe (Ant. N. Sakkoulas-Berliner Wissenschaftsverlag-Bruylant, Berlin, 2007), 139–165; J.J. Rachlinski, ‘Evidence-Based Law’ (2011) 96 Cornell Law Review 901; A. Seidman and R.B. Seidman, ‘ILTAM: Drafting Evidence-Based Legislation for Democratic Social Change’ (2009) 89 Boston University Law Review 435. Stefan T. Trautmann, ‘Empirical Knowledge in Legislation and Regulation: A Decision Making Perspective’ (2013) 1 Theory and Practice of Legislation; Pauline Westerman, ‘Breaking the Circle: Goal-Legislation and the Need for Empirical Research’ (2013) 1 Theory and Practice of Legislation 395; Peter Cserne, ‘Introduction: Legislation, Legal Episteme and Empirical Knowledge’ (2013) 1 The Theory and Practice of Legislation 387; Cass R Sunstein, ‘Empirically Informed Regulation’ (2011) 78 The University of Chicago Law Review 1349.

20 C.E. Borgmann, ‘Appellate Review of Social Facts in Constitutional Rights Cases’ (2013) 101 California Law Review 1185, 1187 (‘the importance of weighing social facts in determining whether laws are constitutional is now so well accepted as to be taken for granted’). In fact, Faigman argues that even questions of constitutional interpretation often hinge on empirical and factual questions. D.L. Faigman, Constitutional Fictions: A Unified Theory of Constitutional Facts (Oxford University Press 2008).

21 A.O. Larsen, ‘Confronting Supreme Court Fact Finding’ (2012) 98 Virginia Law Review 1255, 1255–1257. The different classifications of various kinds of constitutional facts, such as distinctions between adjudicative facts, legislative facts, social facts, scientific, etc., are beyond the scope of this article, nor are they necessary for present purposes. For detailed discussions see for example ibid; W.W. Buzbee and R.A. Schapiro, ‘Legislative Record Review’ (2001) 54 Stanford Law Review 87, 98 n. 31; D.L. Faigman, ‘Defining Empirical Frames of Reference in Constitutional Cases: Unraveling the As-Applied Versus Facial Distinction in Constitutional Law’ (2009) 36 Hastings Constitutional Law Quarterly 631; P.P. Frickey, ‘The Fool on the Hill: Congressional Findings, Constitutional Adjudication, and United States v Lopez’ (1996) 46 Case Western Reserve Law Review 695, 716.

22 M.C. Dorf, ‘The Limits of Socratic Deliberation’ (1998) 112 Harvard Law Review 4, 38. A detailed discussion on the relationship between EBJR and issues such as different constitutional theories, consequentialist vs deontological approaches and the facts/law, fact/value, ought/is debates are beyond the scope of this article. For a more detailed discussions see Dorf ibid.; D.M. Hashimoto, ‘Science as Mythology in Constitutional Law’ (1997) 76 Oregon Law Review 111, 116–120; N. Petersen, ‘Avoiding the Common-Wisdom Fallacy: The Role of Social Sciences in Constitutional Adjudication’ (2013) 11 International Journal of Constitutional Law 294, 296–306.

23 See, for example, Dorf ibid.; Choudhry (n 6); Faigman (n 20) 1–2; Petersen (n 22); J. Gerards, ‘How to Improve the Necessity Test of the European Court of Human Rights’ (2013) 11 International Journal of Constitutional Law 466.

24 See, for example, E. Macfarlane, Governing from the Bench: The Supreme Court of Canada and the Judicial Role (UBC Press 2013) 150–54. K.T. Spelman, ‘Revising Judicial Review of Legislative Findings of Scientific and Medical “Fact”: A Modified Due Process Approach’ (2009) 64 New York University Annual Survey of American Law 837.

25 See, for example, W.D. Araiza, ‘Deference to Congressional Fact-Finding in Rights-Enforcing and Rights-Limiting Legislation’ (2013) 88 New York University Law Review 878; E. Berger, ‘Deference Determinations and Stealth Constitutional Decision Making’ (2012) 98 Iowa Law Review 645; E.H. Meazell, ‘Scientific Avoidance: Toward More Principled Judicial Review of Legislative Science’ (2009) 84 Indiana Law Journal 239; L.J. Virelli, ‘Judicial Deference to Congress and the Separation of Powers’ (2013) 98 Iowa Law Review Bulletin 28. For a recent overview of scholarship on this matter see S. von Ende, ‘Casey, Gonzales, and State Legislature's Unscrupulous Use of Science in Crafting Legislation to Regulate Pregnant Women and Women's Access to Reproductive Health Care’ (2016) 4 Indiana Journal of Law and Social Equality 21, 51–54.

26 Alemanno (n 1) 338.

27 McGinnis and Mulaney (n 8).

28 Cf. Lee (n 9).

29 Larsen (n 21).

30 On this often overlooked distinction of whether the legislative findings appear in the legislative record or the in statute itself, see D.A. Crane, ‘Enacted Legislative Findings and the Deference Problem’ (2014) 102 Georgetown Law Journal 637.

31 Cf. D.T. Coenen, ‘A Constitution of Collaboration: Protecting Fundamental Values with Second-Look Rules of Interbranch Dialogue’ (2001) 42 William and Mary Law Review 1575, 1655–56; N. Petersen, ‘Avoiding the Common-Wisdom Fallacy: The Role of Social Sciences in Constitutional Adjudication’ (2013) 11 International Journal of Constitutional Law 294, 314–315.

32 For example, Lee (n 9).

33 For example, van Gestel and de Poorter (n 12).

34 For example, Alemanno (n 1), as discussed in part 5.

35 HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [2005] (2) IsrLR 335; 125 BVerfGE 175 <1 BvL 1/09> Hartz IV. For a much richer comparison of additional aspects in these two cases see A. Benish and M. Kramer, ‘Filling the Gap: An Interpretation of the Constitutional Right to Life in Dignity following the German Jurisprudence’ (2015) 14 Labour, Society and Law 263.

36 HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [2005] (2) IsrLR 335.

37 Ibid., para 23.

38 Ibid., para 23.

39 Ibid., para 23.

40 Ibid., para 24.

41 Ibid., para 7.

42 Ibid., para 19.

43 Ibid., para 9.

44 Ibid., para 29.

45 Ibid., Justice Levi, dissenting.

46 Ibid., para 29.

47 Ibid., para 29.

48 125 BVerfGE 175 <1 BvL 1/09> Hartz IV.

49 Ibid., para 139.

50 Ibid., para 142.

51 Ibid., para 141–142.

52 Ibid., 142.

53 Ibid., 143.

54 See also K. Meßerschmidt, ‘Evidence-Based Review of Legislation in Germany’ in this issue (observing that ‘The Court declared that the[s]e were unconstitutional, primarily because they were not entirely based on a statistical investigation by the legislature.’).

55 Ibid. See also K. Meßerschmidt, ‘The Good Shepherd of Karlsruhe: The “Hartz IV” Decision on Unemployment Benefits and Social Allowances – A Good Example of Regulatory Review by the German Federal Constitutional Court?’ in P. Popelier et al. (eds), Role of Courts in a Context of Multilevel Governance (Intersentia 2012); S. Rose-Ackerman, S. Egidy and J. Fowkes, Due Process of Lawmaking (Cambridge University Press 2015) 179–186.

56 For example, van Gestel and de Poorter (n 12); Gerards (n 6); K. Lenaerts, ‘The European Court of Justice and Process-Oriented Review’ (2012) 31 Yearbook of European Law 3; P. Popelier, ‘The Court as Regulatory Watchdog: The procedural approach in the case-law of the European Court of Human Rights’ in P. Popelier et al. (eds), The Role of Constitutional Courts in Multilevel Governance (Intersentia 2012); P. Popelier and C. Van De Heyning, ‘Procedural Rationality: Giving Teeth to the Proportionality Analysis’ (2013) 9 European Constitutional Law Review 230; O.M. Arnardóttir, ‘Organised Retreat? The Move from “Substantive” to “Procedural” Review in the ECtHR's Case Law on the Margin of Appreciation’ in C. Binder et al. (eds), European Society of International Law (ESIL) (2015) Annual Conference 2015 <http://www.ssrn.com/abstract=2709669> accessed 12 June 2016; O. M. Arnardóttir, ‘Rethinking the Two Margins of Appreciation’ (2016) 12 European Constitutional Law Review 27; P.P. Frickey and S.S. Smith, ‘Judicial Review, the Congressional Process, and the Federalism Cases: An Interdisciplinary Critique’ (2001) 111 Yale Law Journal; E. Brems and L. Lavrysen, ‘Procedural Justice in Human Rights Adjudication: The European Court of Human Rights’ (2013) 35 Human Rights Quarterly 176; M. Saul, ‘The European Court of Human Rights’ Margin of Appreciation and the Processes of National Parliaments’ (2015) 15 Human Rights Law Review 745.

57 E.g. Alemanno (n 1).

58 Bar-Siman-Tov (n 3); cf. D.T. Coenen, ‘The Rehnquist Court, Structural Due Process, and Semisubstantive Constitutional Review’ (2001) 75 Southern California Law Review 1281.

59 See, for example, Alemanno (n 1) 328; I. Bar-Siman-Tov, ‘The Puzzling Resistance to Judicial Review of the Legislative Process’ (2011) 91 Boston University Law Review 1923–1924.

60 See, for example, J.S. Martinez, ‘Process and Substance in the “War on Terror”’ (2008) 108 Columbia Law Review 1013, 1018–1027.

61 Importantly, however, Ely added: ‘But the realization that the terms carry no monolithic meaning at once appropriate to all the contexts . . . need not imply that they can have no meaning at all.’ J.H. Ely, ‘The Irrepressible Myth of Erie’ (1974) 87 Harvard Law Review 693, 724.

62 The Israeli Supreme Court, for example, has explicitly maintained this dichotomy in many cases, even in cases in which the parties raised arguments that merged together procedural and substantive review. For an elaborate discussion of these cases see Bar-Siman-Tov (n 6). It appears that this pure substantive view is also the traditional approach of English courts (see A. Kavanagh, ‘Proportionality and Parliamentary Debates: Exploring Some Forbidden Territory’ [2014] Oxford Journal of Legal Studies 1); ‘the normal approach’ in cases by the Spanish Constitutional Court (see D. Oliver-Lalana, ‘On the (Judicial) Method to Review the (Legislative) Method’ in this issue (citing Judgment of 16 February 2012 (STC 20/2012, FJ II)); and was also common in traditional German jurisprudence (see Meßerschmidt (n 5) 348 (citing K. Schlaich, ‘Die Verfassungsgerichtsbarkeit im Gefüge der Staatsfunktionen’ (1981) 39 Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 99, 109); N. Petersen, ‘The German Constitutional Court and Legislative Capture’ (2014) 12 International Journal of Constitutional Law 650, 655).

63 I. Bar-Siman-Tov, ‘The Puzzling Resistance to Judicial Review of the Legislative Process’ (2011) 91 Boston University Law Review 1915, 1923.

64 See, for example, W.W. Buzbee and R.A. Schapiro, ‘Legislative Record Review’ (2001) 54 Stanford Law Review 87.

65 Barak, J. in HCJ 246/81 Agudat Derekh Eretz v Broadcasting Authority 35(4) PD1 [1981] 54, translation available at <http://versa.cardozo.yu.edu/sites/default/files/upload/opinions/Agudat%20Derekh%20Eretz%20v.%20Broadcasting%20Authority.pdf>.

66 United States v. Lopez, 514 U.S. 549, 613–14 (1995) (J. Souter, dissenting).

67 HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [2005] (2) IsrLR 335.

68 Admittedly, one can theoretically argue that a strict reading of the ‘enrolled bill doctrine’ would prevent courts from considering materials from the legislative process even for such purposes, but I very much doubt if this is a proper interpretation of this doctrine. For a more elaborate explanation on this doctrine, see I. Bar-Siman-Tov, ‘Legislative Supremacy in the United States: Rethinking the Enrolled Bill Doctrine’ (2009) 97 Georgetown Law Journal 323.

69 Gonzales v. Raich, 545 U.S. 1, 21 (2005).

70 I. Bar-Siman-Tov, ‘The Puzzling Resistance to Judicial Review of the Legislative Process' (2011) 91 Boston University Law Review 1921–1923.

71 HCJ 4885/03 Isr. Poultry Farmers Ass'n v. Gov’t of Isr. 59(2) PD 14 [2004] (Isr.), translated in 2004 Isr. L. Rep. 388 (2004).

72 Ibid., para 26.

73 Ibid., para 26.

74 Ibid., para 28.

75 Ibid., para 29.

76 Ibid. The Court held that it ‘will restrict its judicial review of the legislative process to protection of the right of members of the Knesset [ … ] to participate in the legislative process,’ and noted that this may contribute to conditions that enable a deliberative rational legislative process. However, failure to follow a deliberative evidence-based legislative process will not be sufficient grounds to invalidate the law.

77 Ibid., para 3.

78 Bar-Siman-Tov (n 3).

79 See also Bar-Siman-Tov (n 3) 278.

80 Ibid.

81 Ibid.

82 Ibid., 274.

83 Ibid., 278.

84 See part 4.1 supra.

85 Moreover, as Popelier and De Jaegere seem to indicate in their contribution to this special issue, it may be that in some jurisdictions, such as Belgium, most EBJR cases were purely substantive. P. Popelier and J. De Jaegere, ‘Evidence-based Judicial Review of Legislation in Divided States: The Belgian Case’, in this issue.

86 125 BVerfGE 175 at 141–142 <1 BvL 1/09> Hartz IV.

87 See section 3.2 supra.

88 Fullilove v. Klutznick, 448 U.S. 448, 550-51 (1980).

89 Ibid.

90 Ibid.

91 Agudat Derekh Eretz (n 65).

92 Ibid.

93 Ibid.

94 Reno v ACLU, 521 U.S. 844, 879 (1997).

95 Board of Trustees of the University of Alabama v Garret, 531 U.S. 356 (2001).

96 Ibid., at 368–370 (parsing the legislative record and holding that ‘The legislative record … simply fails to show that Congress did in fact identify a pattern of irrational state discrimination in employment against the disabled,’ that ‘Congress assembled only such minimal evidence’ and that this evidence ‘fall[s] far short of even suggesting the pattern of unconstitutional discrimination on which § 5 legislation must be based.’)

97 Ibid., at 368.

98 Ibid., at 374.

99 Ibid., at 370. In addition to refusing to consider evidence that was not submitted to Congress, the majority's decision was criticised by commentators for reviewing the legislative record ‘exceptionally strictly, in a way that reduced most of Congress's examples to irrelevance.’ W.D. Araiza, ‘After the Tiers: Windsor, Congressional Power to Enforce Equal Protection, and the Challenge of Pointillist Constitutionalism’ (2014) 94 Boston University Law Review 367, 380. 

100 Buzbee and Schapiro (n 21) 118. See also Coenen (n 58) 1325–26; Frickey & Smith (n 56) 1725–1727.

101 Evans v. the UK [GC], no. 6339/05, Section 86, ECHR 2007–I.

102 Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 108, ECHR 2013 (extracts).

103 Case T-252/07 Sungro, SA and Others v. Council and Commission [2010] ECR II-55, para 60.

104 Lenaerts (n 56) 2–3.

105 Joined Cases C-92/09 and 93/09 Volker and Markus Schecke GbR [2010] ECR I-11063, para 81.

106 O. De Schutter, ‘The Implementation of the Charter by the Institutions of the European Union’ in S. Peers et al. (eds), The EU Charter of Fundamental Rights: A Commentary (Bloomsbury Publishing 2014) 1627, 1644–1645.

107 Alemanno (n 1) 335–336.

108 Alemanno (n 1) 334.

109 Ibid., 333–334.

110 Ibid.

111 Ibid., 331–332.

112 Ibid.

113 See the sources cited in note 56 above.

114 See also I. Bar-Siman-Tov (n 3) 278.

115 Meßerschmidt (n 5).

116 Coenen (n 58) 1283.

117 Rose-Ackerman, Egidy and Fowkes (n 55) 185–186.

118 Rose-Ackerman, Egidy and Fowkes (n 55) 267–268; P. Popelier, ‘Preliminary Comments on the Role of Courts as Regulatory Watchdogs' (2012) 6 Legisprudence 257, 260–261.

119 HCJ 4885/03 Isr. Poultry Farmers Ass'n v. Gov’t of Isr. Supra (n 56).

120 Crane (n 30) 643; Rose-Ackerman, Egidy and Fowkes (n 55) 73.

121 Coenen (n 58) 1386.

122 Gonzales v Raich, 545 U.S. 1, 21 (2005) (citations omitted).

123 van Gestel and de Poorter (n 12). See also A. Alemanno, ‘Courts and Regulatory Impact Assessment’ in C.A. Dunlop and C.M. Radaelli (eds), Handbook on Regulatory Impact Assessment (Edward Elgar 2016) 127, 133.

124 I’m careful to say that this may be more an American than a European trend, because van Gestel and de Poorter (n 12) argue that ‘What the ECJ and the Dutch courts appear to have in common is that they are hesitant to look beyond a procedural review in order to challenge the facts, empirical data, and scientific knowledge applied by legislators and regulators.’

125 B.L. Ross, ‘The State as Witness: Windsor, Shelby County, and Judicial Distrust of the Legislative Record’ (2014) 89 New York University Law Review 2027.

126 Ibid. J. Martinez, ‘Rational Legislating’ (2005) 34 Stetson Law Review 547, 583 makes a similar claim:

Judicial inquiry into whether evidence exists in the legislative record for legislative findings leading to enactment of legislation is thus the hallmark of the Court's evolving jurisprudence in these areas. Significantly, however, the Court in these fields has exercised judicial review that second-guesses the legislative determination of whether the evidence indeed supports the findings, and whether the findings, in turn, lead to the legal rules enacted.

127 In addition to his argument about the Court's shift from reviewing the adequacy of the legislative record to also questioning the substantive credibility of the evidence in the legislative record, Ross adds another argument, which bolsters and complicates the mixture of process and substance in EBJR even further: he argues that ‘Justices question the credibility of the record when they suspect a malfunctioning of the political process that shaped the record.’ Ross (n 125) 2032.