In my last post, I noted that the idea that courts are “counter-majoritarian” is not a useful basis for a critique of the courts. This is not to say, however, that there are no potential objections to judicial review from the standpoint of democratic theory. The first set of objections is strictly normative. On can concede—like John Hart Ely did—that Roe is not “counter-majoritarian” and still believe it was incorrectly decided, and the same is true for any other case. Jeremy Waldron’s objections to judicial review—which I actually find problematic in a number of respects—fall into this category. Allow me bracket those type of objections for the time being; I don't have any grand theory of constitutional interpretation to offer anyway. Instead, I’d like to focus on something else: the fact that courts and legislatures are not always locked in a zero-sum struggle for power, as most critiques of judicial review assume. I want to suggest, rather, that the courts and legislatures are in sometimes in cahoots, and that this opens up new ways of thinking about judicial review. I’ll start with some empirical examples…
