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

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

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

Warren Court era. Bickel articulated the way thedemocratic legitimacy of the courts had generally been evaluated in famouslanguage: “The root difficulty is thatjudicial review is a counter-majoritarian force in our system…when the SupremeCourt declares unconstitutional a legislative act or the action of an electedexecutive, it thwarts the will of representatives of the actual people of thehere 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 wasadmittedly more complex than town-hall plebiscitarianism, “none of thesecomplexities can alter the essential reality that judicial review is a deviantinstitution in the American democracy.” (Ibid: 18.) Bickel’s “counter-majoritarian difficulty” hasoften been the starting point for both people who ultimately support judicialreview and for skeptics. Many peopletake as a starting point that courts and legislatures are engaged in a zero-sumstruggle, and that the courts represent minorities against the majoritiesrepresented in the political branches. What’s strange about the near ubiquity of the “counter-majoritariandifficulty” framework is that it is transparently wrong in several respects…