Judicial Review And Democracy I: Beyond the "Counter-majoritarian Difficulty"

I was interested to see Rosenfeld and Yglesias discuss
Jeffrey Rosen’s article in last week’s Times Magazine, in which Rosen discovered
that courts often tend to represent national majorities. Oddly, my co-blogger Dave and I presented a
paper at the Law & Society conference on this very topic.

The late Alexander Bickel wrote a book, The Least Dangerous
, that was enormously influential in the development of legal theory in

Warren Court era.  Bickel articulated the way the
democratic legitimacy of the courts had generally been evaluated in famous
language: “The root difficulty is that
judicial review is a counter-majoritarian force in our system…when the Supreme
Court declares unconstitutional a legislative act or the action of an elected
executive, it thwarts the will of representatives of the actual people of the
here and now; it exercises control, not in behalf of the prevailing majority,
but against it. That, without mystic overtones, is what actually happens.”
(1962: 16-7.) While democracy was
admittedly more complex than town-hall plebiscitarianism, “none of these
complexities can alter the essential reality that judicial review is a deviant
institution in the American democracy.” (Ibid: 18.)  Bickel’s “counter-majoritarian difficulty” has
often been the starting point for both people who ultimately support judicial
review and for skeptics. Many people
take as a starting point that courts and legislatures are engaged in a zero-sum
struggle, and that the courts represent minorities against the majorities
represented in the political branches. What’s strange about the near ubiquity of the “counter-majoritarian
difficulty” framework is that it is transparently wrong in several respects…

You may also like