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52 Chapter 2
of powers. 65 It is important to realise that what the principle of comity
requires of courts varies with the circumstances. 66 For the moment, however,
we must consider what the principle of comity requires in the context of
rationality review. Bishop seems to argue that the duty implies that judges
should exercise no discretion at all. As he puts it:
If the test permitted or required judges to use their own discretion in
determining the rationality of a choice, that command [ie the command not to
second-guess legislative choices] would be undermined as judges’ attitudes
would pollute the so-called neutral inquiry. The traditional underpinnings of
rational basis review therefore demand a test that forces predictable outcomes
and removes personal discretion. Judges are therefore obliged to frame the
rational basis test as excluding their discretion. 67
It seems to me that this interpretation of what the principle of comity requires
in the context of rationality review is too strict for two connected reasons.
First, it renders rationality review incoherent by sheer definitional stipulation.
For it is beyond doubt, as Bishop convincingly argues, that the application of
the rationality principle often involves the exercise of judicial discretion. This,
as I have explained, is due to the evaluative nature of its purpose requirement
and the vagueness of its effect requirement. 68 Rationality review inevitably
contradicts the duty not to ‘second-guess’ the decisions of the legislature and
executive if that duty is interpreted strictly, as Bishop does, to exclude
discretion altogether.
But, secondly, we need not interpret the duty so strictly: there is
an alternative interpretation that avoids Bishop’s stark conclusions.
Because the rationality principle requires only that the law or conduct in
question serve one acceptable purpose, it envisages a range of rational
laws and acts even wider than that of reasonable laws and acts. Within that
broad range of rational options, the political branches of the state are free
to choose without constraint. Courts engaging in rationality review have
no role to play in regard to this political choice from among rational options.
Thus, on the one hand, it is a requirement of the principle of comity that
judges do not ‘second-guess’ policy decisions within this legitimate sphere.
On the other hand, however, courts are obliged to police the boundaries of
that sphere by invalidating any law or conduct that lies outside it. They do
so by applying the rationality principle.
Of course, on every occasion that an applicant mistakenly argues that a
rational law or act is irrational, he or she effectively invites the courts to
violate the principle of comity. That is because, by asking the court to
invalidate rational law or conduct the applicant effectively asks the court to
order the political branches not to choose an option lying within their
65 Endicott (n 61 above) 101 - 104.
66 I consider such variability below, in sec 3.3.
67
Bishop (n 5 above) 27.
68 See the discussion above, from sec 2.3.