Do You Think the Supreme Court Acts as a Counter Majoritarian Institution?
This paper defends the view that in a democratic society, deliberation and decision-making about the meaning and content of the constitution should extend beyond the ordinary institutions of government. Under that conception, a more democratic approach to the counter-majoritarian difficulty would provide popular majorities (as opposed to legislatures) with the faculty to amend the fundamental law in order to respond to a judicial decision that invalidated an ordinary law. For example, citizens could be able to engage in the activity of constitutional reform through non-constituent assemblies, triggered by popular referendum and having the specific mandate of deliberating about the judicial decision in question and the power to propose constitutional changes that would be subject to popular ratification.
The counter-majoritarian difficulty rests on a positive (factual) assumption—that the Supreme Court does, in fact, act contrary to political majorities. Some political scientists have argued that this positive assumption is incorrect—that the Supreme Court rarely, if ever, acts contrary to the wishes of the dominant political faction. There could be many reasons for that—one of them being the Supreme Court’s awareness that if it were to buck Congress and the President, it is vulnerable to a variety of political reprisals. Congress might strip the Court of jurisdiction. Ultimately, the President might simply refuse to cooperate with Court’s decisions. There is another side to this story. There may be reasons why elected politicians prefer for the Supreme Court to “take the heat” for some decisions that are controversial. When the Supreme Court acts, politicians may be able to say, “It wasn’t me. It was that darn Supreme Court.” And in fact, the Supreme Court’s involvement in some hot button issues may actually help political parties to mobilize their base: “Give us money, so that we can [confirm/defeat] the President’s nominee to the Supreme Court, who may cast the crucial vote on [abortion, affirmative action, school prayer, etc.].” In other words, what appears to be counter-majoritarian may actually have been welcomed by the political branches that, on the surface, appear to have been thwarted. Once again, I’ve gone on for too long. I hope you will forgive me, and I hope that this Lexicon entry has given you food for thought about the counter-majoritarian difficulty. Below, I’ve included a list of references to articles that focus on the difficulty itself and also to some of the authors who have attempted to give answers to Bickel’s famous problem (Ilya Somin, 2004).
Barry Friedman, The Birth Of An Academic Obsession: The History Of The Countermajoritarian Difficulty, Part Five, 112 Yale L.J. 153 (2002).
Mark Graber, The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary, 7 Studies in American Political Development 35 (1993).
Miguel Schor, The Strange Cases of Marbury and Lochner in the Constitutional Imagination, 87 Tex. L. Rev. 1463, 1477-1486 (2009).
Ilya Somin, Political Ignorance and the Countermajoritarian Difficulty: A New Perspective on the Central Obsession of Constitutional Theory, 89 Iowa L. Rev. 1287 (2004).
Nimer Sultany, The State of Progressive Constitutional Theory: The Paradox of Constitutional Democracy and the Project of Political Justification, 47 Harv. C.L.-C.R. L. Rev. 371 (2012).