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June 22, 2005

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 Branch, that was enormously influential in the development of legal theory in the 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…

Sam explains the problem with this from the end of the courts. well: the Supreme Court rarely deviates from the governing coalition of its time for a significant period. As Lucas Powe has convincingly argued, the major decisions of the Warren Court, which are often seen as defining “counter-majoritarian” activism, were better described as being national majorities challenging regional outliers—the south on segregation, the northeast on contraception. Many of the court’s decisions—including Brown—clearly represented national majorities. Even the minority that didn’t—such as Miranda and the school prayer decisions—were consistent with the governing collation of the time. (As Mark Graber has noted, a generation of legal scholars discussed the Warren Court as if Goldwater won a landslide in 1964.)

But I can understand, at least, why this part of the argument has persisted. The conception of courts as defenders of minority rights makes a certain intuitive sense, and the empirical case requires knowledge of political science literature that many law professors (let alone lay commenters) don’t have. What’s really strange about Bickel’s claim is that the political branches are “majoritarian,” and that institutions that aren’t are “deviant.” This isn’t merely false in practice, due to factors (such as computer-driven gerrymandering) that Rosen points out. It’s false in theory.  Most of you will have noticed that California’s 34 million people get 2 Senators and Wyoming’s 12 people get 2 Senators. And then you have checks and balances and filibusters and committee chairs and a variety of other veto points that can allow minorities to stop legislation favored by a majority. Some of you may even have read Madison and know that this was not accidental but was a deliberate choice reflected in the institutional design of the Constitution.  Rosen (one of whose predecessors as the legal correspondent of The New Republic was Bickel, and who has generally applied his democratic theory) suggests that this is a recent development, but it’s not. Legislatures have often failed to reflect national majorities. And, of course, very few people would advance Bickel’s democratic theory as a normative principle; even those of us who hate the Senate generally thinks that democracy means something more than “majority rule.” And what’s most remarkable is that all of this is obvious.   The Bickelian framework compels people to make claims about American democracy they would never make in any other context than when evaluating judicial review.

One difficulty one has in expressing these ideas, however, is that people often think that when you point out that judicial review isn’t always “counter-majoritarian,” and if it is was it wouldn’t make it a “deviant institution,” people think you’re being an apologist for the courts.  It should be pointed out that this doesn't follow.  As Matt quite correctly notes, the power of well-organized minorities within democracy is ineleuctable.  To say that Roe v. Wade—which a majority of the public supports by a two-to-one margin, and has always supported—isn’t counter-majoritarian isn’t to say, ipso facto, that it was correctly decided. (I do believe that it was, but it requires an independent argument.) The most reprehensible parts of Dred Scott, which obviously nobody would defend, were clearly the majority position, North and South. To move beyond Bickel’s framework does not end questions about the democratic legitimacy of judicial review; it just raises different was. This will be the subject of my next post.

--Scott Lemieux

June 22, 2005 | Permalink

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» Counter-Majoritarian Myths from Democracy Vs. The Constitution
Ezra's guest blogger Scott (no, not Neil) has a good post and summary of the recent arguments over the democratic legitimacy of judicial review. [Read More]

Tracked on Jun 23, 2005 11:02:30 AM

Comments

Majoritarian my tukhas!

Posted by: TheJew | Jun 22, 2005 4:36:54 PM

Great post. Where's the paper?

Posted by: nolo | Jun 22, 2005 4:55:18 PM

Without equal opportunity to utilize the crucial preliminaries -- speech, press, assembly, petition -- the idea of government by the consent of the governed becomes an empty declamation. Majorities -- and this is a key point in democratic theory -- are in flux. Tomorrow's majority may have a different composition as well as different goals. Defense of the political rights of minorities thus becomes, not the antithesis of majority rule, but its very foundation. The majority must leave open the political channels by which it can be replaced when no longer able to command popular support.
-- Alpheus T. Mason, "The Supreme Court: Palladium of Freedom"

The basis for the Republicans' current ostensible passion for majoritarianism becomes clear in this light, as does their determination to do away with any checks and balances on executive power. (Along with their attacks on the independent judiciary, it's unthinkable that any current Republican Senator would have the courage to take on the role of opposing the Iraq War as Sen. Fulbright -- who had sponsored the Tonkin Gulf Resolution -- did with his hearings on the Vietnam War in 1966.)

Bickel's position was even more fraudulent when he wrote it, as it included opposition to Baker v. Carr, which then led to Saunders, the one-person, one-vote case. Forget about the Senate. Before those cases, some urban House districts contained 8 or 9 times as many people as rural districts, and all that Anglophilic jerk Felix Frankfurter -- who was Bickel's role model for "judicial restraint" -- had to say was that the gerrymandered reps should just be told to give up their power voluntarily: a "civically militant electorate" had to "sear the conscience of the people's representatives," which represents possibly an all-time high in naivete or ivory-tower obliviousness.

Posted by: Steady Eddie | Jun 22, 2005 4:56:26 PM

Nolo--LSA, unfortunately, doesn't seem to have an online paper database. Hopefully it will be coming soon to an obscure journal near you. :)

Posted by: Scott Lemieux | Jun 23, 2005 11:16:51 AM

I will keep an eye out for it.

Posted by: nolo | Jun 23, 2005 1:25:33 PM

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Posted by: peter.w | Sep 16, 2007 9:41:10 PM

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