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Do You Think the Supreme Court Acts as a Counter Majoritarian Institution?

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Recent scholarship in political science and law challenges the claim that judicial review in the United States poses what Alexander Bickel famously called the “counter-majoritarian difficulty.” Although courts do regularly invalidate state and federal laws on constitutional grounds, they rarely depart substantially from the median of public opinion. As Barry Friedman shows in his magisterial history of the tug-of-war over constitutional meaning between the People and the Supreme Court, criticism of the Court for its supposedly countermajoritarian character has tended to track the substantive unpopularity of the Court’s decisions.

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Discussions about the democratic legitimacy of judicial review of legislation are usually framed in terms of the so called ‘counter-majoritarian’ difficulty, the idea that judicial review is a deviant institution in a democracy. How can a country be considered democratic if a group of non-elected judges have the faculty to strike down laws that have been adopted by a majority of the elected representatives of the people? In framing the question in those terms, however, we tend to forget that there is nothing in the counter-majoritarian difficulty suggesting that judicial review of legislation is necessarily problematic from a democratic perspective. An institutional arrangement that gives judges the faculty to strike down laws inconsistent with the constitution only creates a counter-majoritarian difficulty if the constitution cannot be amended by simple majorities. In not paying proper attention to the role played by a rigid amendment process in the existence of a counter-majoritarian difficulty, this paper will argue, we have missed the opportunity of democratizing processes of constitutional reform in important ways while at the same time maintaining in place a system of constitutional review in which judges retain the ability of striking down legislation. The idea of giving simple majorities the possibility of having the final word on the meaning and scope of rights is of course not new. In fact, it is the basic feature of the weak system of judicial review now present in several commonwealth countries. However, such a system does not go beyond courts and legislatures, beyond legal and political constitutionalism, and it is therefore open to the same types of critiques advanced by defenders of strong judicial review against systems of legislative supremacy

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.

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Ackerman’s theory emphasized the idea of distinct regimes that resulted from “constitutional moments”—periods of intense popular involvement in constitutional politics (Mark Graber, 1993). Recently, Jack Balkin and Sandy Levinson have advanced a similar theory—which emphasizes that idea of “high politics”—the great popular movements that seek to influence the decisions of the Supreme Court on issues like abortion or affirmative action. I can’t do justice to their theory here, but the idea is that the Supreme Court may be responding to democratic pressures when it makes the really big constitutional decisions. So far, I’ve been discussing responses to the counter-majoritarian difficulty that operate within normative constitutional theory. There is another important line of attack, however

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).

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In either case, this is not in order to become overwhelmed and paralyzed by cynicism, but to consider what strategic choices led to the positive outcomes in these decisions, and to discover what important political and theoretical work the cases have left unperformed. Only then can legal theorists and social movement organizations begin a serious dialogue with the Court, other legal actors, and the public concerning how these important cases fit within a broader, more substantive, social justice agenda.

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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).

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