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Solving the countermajoritarian
difficulty ?
Or Bassok* and Yoav Dotan**
For many years, scholars have attempted to justify the US Supreme Court’s countermajoritarian judicial review authority. In recent years, several scholars have attempted instead to
dissolve the countermajoritarian difficulty, claiming based on empirical evidence, that the
Supreme Court’s decisions are usually in sync with public opinion. We adopt a third and
novel path in tackling this long-debated normative difficulty. We acknowledge that the Court,
at times, acts in a countermajoritarian fashion. However, based on empirical evidence that
demonstrates the enduring public support for the Court and the wide acceptance of its judicial review authority by all relevant players, we argue that the countermajoritarian difficulty is partly solved. Our solution is not based on a pre-commitment taken at the time the
Constitution was created or on a mere fictitious act that is part of a thought experiment.
Rather, it is based on an ongoing acceptance of, and support for, judicial review as a mech­
anism to constrain the public’s immediate preferences.
Introduction
The American Supreme Court’s most prominent normative difficulty, the countermajoritarian (CM) difficulty, captures two fundamental aspects of democratic government: majoritarianism and electoral accountability.1 The majoritarianism aspect
presents the difficulty of an unelected Court that rules in a specific controversy against
the current majority thus literally countering the majority will. Our article offers a
solution to this aspect of the difficulty. We argue that the majority of the American
public has accepted the CM judicial constraints. While the public sometimes opposes
* Robina Foundation Visiting Human Rights Fellow, Yale Law School. Email: [email protected].
** Edwin A. Goodman Professor of Law, Faculty of Law, Hebrew University of Jerusalem. Email: msdotan@
mscc.huji.ac.il.
For their invaluable comments and suggestions, we wish to thank Shai Dothan, Sebastiàn Elias, Noam
Y. Finger, Alon Harel, Hélène Landemore, Shay Levi, Barak Medina, Robert Post, Re’em Segev, and participants at the Yale JSD Colloquium and the Public Law workshop at the Hebrew University.
1
Robert A. Dahl, Can International Organizations be Democratic? A Skeptic’s View, in The Cosmopolitanism
Reader 423, 423 (Garret Wallace Brown & David Held eds., 2010) (arguing that democracy as a system
of popular control means responsiveness and accountability to the demos).
I•CON (2013), Vol. 11 No. 1, 13–33doi:10.1093/icon/mos047
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I•CON 11 (2013), 13–33
specific judgments, the majority of the public and its representatives accept, at the
same time, the Court’s binding review-power.
We begin our discussion with a short analysis of the two aspects of the CM difficulty. In the second section, we survey the two major ways in which the CM difficulty
was confronted by scholars. We do not purport to offer an exhaustive survey of these
attempts to justify the Court’s CM authority or to dissolve it, nor do we attempt to
evaluate the cogency of these attempts. Our sole purpose is to situate our solution
to the majoritarianism aspect of the CM difficulty within the scholarly arena. Next,
we present empirical studies demonstrating that the Court holds a reservoir of public
support. We also survey other works that show that the public and its representatives
accept judicial review over legislation. Based on these data, we present our solution
which attributes moral legitimacy to the Court’s CM judicial review authority based
on sociological legitimacy.2 Before concluding, we discuss in the fourth section several
difficulties our solution raises.
1. The two aspects of the CM difficulty
The literal understanding of the CM difficulty emphasizes the majoritarian component of democracy, i.e., the correspondence with the aggregated preferences of the
populace.3 When the Court rules in a specific controversy against the current majority
as quantified by polling, it acts counter to the majority will thus acting in a literally
CM fashion. The traditional understanding of the CM difficulty emphasizes electoral
accountability as the focus of the difficulty, i.e., the problem with justices striking
down statutes that are the fruits of electorally-accountable branches.4
These two aspects are obviously connected. Electorally accountable institutions are
sensitive to majoritarian preferences.5 Yet there is still a difference between the two
understandings. When the Court overrules legislation that the majority of the public,
as measured in public opinion polls, opposes, the Court’s decision is not CM in the literal
sense since the public supports the decision.6 However, it is still CM in the traditional
2
3
4
5
6
See Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1787 (2005) (distinguishing
between sociological legitimacy and normative legitimacy).
See, e.g., Barry Friedman, Mediated Popular Constitutionalism, 101 Mich. L. Rev. 2596, 2596 (2003) (“At
bottom [‘countermajoritarian’] often seems to be a claim, and perhaps must be a claim, that when judges
invalidate governmental decisions based upon constitutional requirements, they act contrary to the preferences of the citizenry.”).
See, e.g., John Hart Ely, Democracy and Distrust 4–5 (1980) (“[T]he central function, and it is at the same
time the central problem, of judicial review: a body that is not elected or otherwise politically responsible
in any significant way is telling the people’s elected representatives that they cannot govern as they’d
like.”); Daniel A. Farber & Suzanna Sherry, Judgment Calls xi (2009) (“The countermajoritarian difficulty
refers to the supposedly anti-democratic nature of judicial review, since it allows courts to overturn the
handiwork of elected officials.”).
See Michael J. Perry, The Constitution, The Courts, and Human Rights 170 n. 4 (1982); Julian N. Eule, Judicial
Review of Direct Democracy, 99 Yale L.J. 1503, 1532 (1990).
Nathaniel Persily, Jack Critin, & Patrick J. Egan, Public Opinion and Constitutional Controversy 5 (2008)
(“After all, if the Court merely reflected public opinion in its decisions, then whatever other problems it
might have, it could not be described as countermajoritarian.”).
Solving the countermajoritarian difficulty
15
sense since an unaccountable institution thwarted the will of an accountable institution. In other words, an unelected court that enjoys public support and whose decisions
are in line with public opinion still raises the CM difficulty in its traditional sense when
it reviews legislation, because it is electorally unaccountable.7 In this article we offer a
solution or an answer only to the majoritarian aspect of the CM difficulty.
2. Confronting the Court’s CM authority
2.1. Justifications
For many years, scholars have focused on suggesting normative justifications for the
Court’s CM authority. However, they did not usually examine whether the justification
they proposed addressed one or both of the aspects captured by the CM difficulty.
These justifications usually consist of two stages. First, the scholar would explicate
a worthy normative vision or goal which can be extracted from the Constitution.8 For
example, several scholars have identified a constitutional commitment to freedom, or
to equality or to the full humanity of every member of society as standing at the basis
of the Constitution.9 Other scholars have claimed that “preserving fundamental values is not an appropriate constitutional task.”10 Thus, they claimed that no value is
inherently entrenched except the procedural process of political majoritarianism.11
Whatever normative goal one extracts from the constitution, justification-based
approaches profess that the chosen normative goal sets the right constitutional course
for the United States from which the People should be prevented from straying, even if
their immediate desires direct them to do so.
Second, the scholar would explain why the function of securing society’s adherence to this course “is peculiarly suited to the capabilities of the courts,” and “will
not likely be performed elsewhere if the courts do not assume it.”12 In other words,
scholars who justify the Court’s CM authority ascribe the Court some special property
that makes it the institution that is best fit to ensure society’s adherence to the right
constitutional course.13 They explicate why an unaccountable institution that may at
times act against the majority’s opinion, is best equipped to achieve the desired goal.
For example, several scholars hold that due to their special training or their relative
7
8
9
10
11
12
13
For further analysis of the differences between the two difficulties, see Or Bassok, The Two
Countermajoritarian Difficulties, 31 St. Louis U. Pub. L. Rev. 333 (2012).
See, e.g., Bruce Ackerman, We The People: Foundations 11 (1991) (describing the common thread of “Rights
Foundationalists”).
See Michael J. Perry, Protecting Human Rights in a Democracy: What Role for Courts, 38 Wake Forest L. Rev.
635, 638–639 (2003); Jeremy Waldron, A Rights-Based Critique of Constitutional Rights, 13 Oxford J. Leg.
Stud. 18, 20 (1993).
See, e.g., Ely, supra note 4, at 88.
See, e.g., id. at 181 (judicial review “can appropriately concern itself only with questions of participation,
and not with the substantive merits of the political choice under attack.”).
Alexander M. Bickel, The Least Dangerous Branch 24 (1962).
See, e.g., Christopher L. Eisgruber, Constitutional Self-Government 1–3 (2001) (“Most scholars and judges
assume that the Court’s power is justifiable (if at all) on the basis of its special legal expertise. . . . This view
is common ground among people who disagree radically about the nature of legal craftsmanship.”).
16
I•CON 11 (2013), 13–33
insularity from public opinion (or both), judges enjoy some institutional advantages
over legislators with respect to the process of discovering, asserting, and implementing human rights.14 Other scholars claim that courts are inferior to legislators in making substantive judgments, but their institutional perspective as political outsiders
makes their judgments about fair process superior.15 Hence, according to all of these
attempts to justify the Court’s CM authority, the Court’s normative legitimacy is based
on its expertise rather than on the people’s consent.16
2.2. The dissolution of the CM difficulty in its literal sense
In 1957, Robert Dahl demonstrated, based on empirical data, that Supreme Court was
rarely out of line with the policies of nation’s lawmaking majorities.17 Since the mid1980s, a trickle of empirical studies, that later became a flood, has compared polling results about salient topics with Supreme Court’s decisions.18 These studies have
shown that the Court’s constitutional decisions have by and large been in sync with
public opinion.19 In his comprehensive studies of the relationship between the Court’s
decisions and public opinion, Thomas Marshall concluded that “the modern Court
appears to be as majoritarian as other American policy makers.”20
During the last decade or so, these empirical findings have convinced many constitutional theorists that the Court is essentially a majoritarian institution: over time,
it tends to reflect the majority’s opinion rather than thwart it.21 Even if a Court that
14
15
16
17
18
19
20
21
See, e.g., Charles Black, A New Birth of Freedom: Human Rights, Named and Unnamed 125 (1997) (“Humanrights claims are made in the name of the law, as the outcome of reasoning from commitment; judges are
practiced in this kind of reasoning and some of them are expert at it.” Emphasis in the original.). See also
Alon Harel & Tsvi Kahana, The Easy Core Case for Judicial Review, 2(1) J. Legal Analysis 227, 232 (2010)
(examining the view that judges are experts on rights).
Cf. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). See also, e.g., Ely, supra note 4,
at 75–77, 75 n.*, 88, 102, and 112 (Ely’s theory, the pinnacle of the Carolene Products tradition, states
explicitly that judges are “experts on process” and “political outsiders,” “uniquely situated to ‘impose’”
the process-based values that stand at the center of the Carolene Products formula).
See David M. Estlund, Democratic Authority 3–4 (2008) (distinguishing between consent and expertise as
bases for authority).
Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. Pub. L.
279 (1957).
See, e.g., Persily, Critin, & Egan, supra note 6; David G. Barnum, The Supreme Court and Public Opinion:
Judicial Decision-Making in the Post-New Deal Period, 47 J. Pol. 652 (1985).
See, e.g., David Adamany & Stephen Meinhold, Robert Dahl: Democracy, Judicial Review, and the Study of Law
and Courts, in The Pioneers of Judicial Behavior 361, 372–373 (Nancy Maveety ed., 2003); Terri Peretti,
An Empirical Analysis of Alexander Bickel’s The Least Dangerous Branch, in The Judiciary and American
Democracy 123, 140 (Kenneth D. Ward & Cecilia R. Castillo eds., 2005) (“Overall, the research refutes
Bickel’s characterization of the Court as a countermajoritarian institution.”).
Thomas R. Marshall, Public Opinion and the Rehnquist Court 3, 35, 55–59 (2008). See also Thomas
R. Marshall, Public Opinion and the Supreme Court 7, 78–81, 97–98, 117, 192–193 (1989) (“Overall, the
evidence suggests that the modern Court has been an essentially majoritarian institution. Where clear
poll margins exist, three-fifths to two-thirds of Court rulings reflect the polls.”).
See, e.g., Barry Friedman, The Will of the People 364–365, 371 (2009) (“[A]s we have seen time and time
again, their decisions plainly reflect the tug of public views.”); Michael C. Dorf, The Majoritarian Difficulty
and Theories of Constitutional Decision Making, 13 U. Pa. J. Const. L. 283, 283 (2010) (“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.’”).
Solving the countermajoritarian difficulty
17
is armed with judicial review powers is, as a matter of logic, a “deviant institution in
the American democracy,”22 as a matter of historical fact, it fits comfortably into the
democratic-majoritarian system.23 Thus, the CM difficulty in its literal meaning is dissolved and exposed as a myth or an illusion since the Court is in fact a majoritarian
institution.24
In recent years, many constitutional theorists have been occupied with examining mechanisms that might explain the correlation between Court’s decisions and
majority opinion. The judicial appointment process is the mechanism perhaps most
frequently invoked to explain the sync between the Court’s adjudication and the positions of the public.25 Justices tend to share the views of the public because they are
picked and appointed by a popularly elected President with the approval of the majority of a popularly elected Senate.26 Another prominent mechanism is political backlash. According to this mechanism when a backlash movement musters strong public
support then, and only then, the Court capitulates to public opinion.27
However, even the most adherent advocates of the dissolution effort admit that
judicial review does at times counter public opinion. They view these occasions as an
unrepresentative glitch in the mechanism that ensures the general correlation with
public opinion.28
3. Solving the CM difficulty
3.1. The Court’s enduring public support and the public’s acceptance
of judicial review
Two related phenomena stand at the heart of our argument. The first is the wide
acceptance of the Court’s judicial review authority by both the public and its repres­
entatives; the second is the public’s enduring support for the Court despite its occasional
22
23
24
25
26
27
28
Bickel, supra note 12, at 18.
Cf. Adamany & Meinhold, supra note 19, at 380 (raising a similar claim regarding Dahl’s claims).
Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 Va. L. Rev. 1, 5–6 (1996).
See Richard H. Pildes, Is the Supreme Court a “Majoritarian” Institution?, 2010 Supreme Court Review 103,
139–140 (2010) (“Indeed, most majoritarians rely centrally on this mechanism to explain how the
Court purportedly comes to reflect national political majorities.”).
See, e.g., Barry Friedman, Dialogue and Judicial Review, 91 Mich. L. Rev. 577, 612 (1993) (“Although
federal judges are not elected, they are appointed by Presidents who stand for popular election. Judicial
appointments often mirror the popular will that elected a President.”); Jack M. Balkin & Sanford Levinson,
The Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State, 75
Fordham L. Rev. 489, 490, 495, 501 (2006) (“If the Court as a whole strays too often and too widely from
the desires of the dominant forces in national politics . . . the appointment process soon pushes the Court
back into line. The calibration is hardly perfect . . .”).
See, e.g., Friedman, supra note 21, at 362 (“One of the greatest engines of constitutional change has been
mobilization against Supreme Court decisions by those unhappy with the results.”); id. at 369, 383.
See, e.g., id., at 382 (“What history shows is assuredly not that Supreme Court decisions always are in line
with popular opinion, but rather that they come into line with one another over time.” Emphasis in the
original.); Peretti, supra note 19, at 132 (“While the Court does indeed often rule against majority opinion
(about one-third of the time, according to Marshall), it more often sides with majority opinion.” Emphasis
in the original.).
18
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CM behavior. These phenomena capture public attitudes and beliefs regarding the
legitimacy of the Court and its judicial review authority. Following scholarly literature, we shall use the phrase “sociological legitimacy” as the general term that encompasses public attitudes regarding the legitimacy of the Court.29
These two phenomena have different manifestations, and have been researched by
different methods. But beyond the professional jargon elaborated below, for our purposes the important point can be summarized as follows. The majority of the public and the majority of elected representatives may at times disagree with a certain
decision made by the Court or with the substantive policy reflected in its outputs.
Nevertheless, the majority of the public still supports the Court, and judicial review is
by and large accepted by the public and its representatives. Before presenting the data
supporting these claims, we examine, in the next section, the metric used for measuring the public’s enduring support for the Court.
(a) The metric for measuring enduring public support for the Court
The notion that the public supports the Court even when it objects to some of its decisions is perhaps best conceptualized by the distinction between specific and diffuse support. In its narrowest meaning, specific support is defined as “satisfaction with the
immediate outputs of the institution;”30 a more expansive view defines it as “satisfaction with the performance of a political institution.”31 Diffuse support, on the other
hand, “is a fundamental commitment to an institution and a willingness to support
the institution that extends beyond mere satisfaction with the performance of the
institution at the moment (specific support).”32 Gibson and Caldeira argue that in
measuring the fundamental and relatively enduring features of the public’s orientation towards the Court, the focus should be on the support for maintaining the institution. According to this view, the Court enjoys high levels of diffuse support when most
of the public objects to making fundamental structural and functional changes in the
Court.33
29
30
31
32
33
See, e.g., Allen Buchanan & Robert O. Keohane, The Legitimacy of Global Governance Institutions, 20
Ethics and International Affairs 405, 405 (2006) (“An institution is legitimate in the sociological sense
when it is widely believed to have the right to rule.”); Fallon, supra note 2, at 1795 (“When legitimacy is
measured in sociological terms, a constitutional regime, governmental institution, or official decision
possesses legitimacy in a strong sense insofar as the relevant public regards it as justified, appropriate, or otherwise deserving of support for reasons beyond fear of sanctions or mere hope for personal
reward.”).
James L. Gibson, Gregory A. Caldeira & Lester Kenyatta Spence, Measuring Attitudes toward the United
States Supreme Court, 47 Am. J. Pol. Sci. 354, 356 (2003).
James L. Gibson & Gregory A. Caldeira, Blacks and the United States Supreme Court: Models of Diffuse
Support, 54 J. Pol. 1120, 1126 (1992); see also Gregory A. Caldeira & James L. Gibson, The Etiology of
Public Support for the Supreme Court, 36 Am. J. Pol. Sci. 635, 637 (1992).
James L. Gibson, Public Images and Understandings of Courts, in: The Oxford Handbook of Empirical Legal
Research 828, 837 (Peter Cane & Herbert M. Kritzer eds., 2010).
Caldeira & Gibson, supra note 31, at 637–639 (“[D]iffuse support is opposition to basic structural and
functional change”).
Solving the countermajoritarian difficulty
19
At times, the public may disagree with a certain decision, or with the substantive
policy reflected in the Court’s outputs. This would reduce the public’s specific support
for the Court. However, the more durable diffuse support can transcend such reactions
to the Court’s concrete performance and remains unscathed.34 Only sustained disappointment with the Court’s decisions can lead to a decline in the diffuse support that
the Court enjoys.35
Several social scientists argue that the Court’s enduring public support can be measured by surveys that examine the public’s confidence in the Court.36 Caldeira and
Gibson, however, claim that the confidence metric conflates specific support and diffuse support.37 Nevertheless, public confidence does show some resilience to unpopular decisions, since it remained relatively stable over the years, even in times when
the Court has handed down unpopular decisions.38 Since public confidence is not
completely contingent on satisfaction with the Court’s immediate decisions, it can be
viewed as positioned between specific and diffuse support on a continuum measuring
the durability of public support.39 It is not merely a measure for “short-term satisfaction” with policy outputs but also a metric of more fundamental loyalty to the Court
over the long-term.
(b) Data demonstrating the Court’s enduring public support and the
acceptance of judicial review authority
At least since the 1970s, the public, though disagreeing at times with specific judgments, has mostly awarded the Court with a steady and relatively high level of confidence.40 Based on the public confidence metric, scholars have shown that aggregate
public support for the Court is “stable and high,”41 and that the “Court has consistently
34
35
36
37
38
39
40
41
Id., at 636–638; Friedman, supra note 3, at 2614–2617.
James L. Gibson, Gregory A. Caldeira, & Vanessa A. Baird, On the Legitimacy of National High Courts, 92
Am. Pol. Sci. Rev. 343, 344, 351–356 (1998) (“[O]nly prolonged dissatisfaction would erode levels of
diffuse support.”).
See, e.g., Robert H. Durr, Andrew D. Martin, & Christina Wolbrecht, Ideological Divergence and Public
Support for the Supreme Court, 44 Am. J. Pol. Sci. 768, 768–769 (2000); Jeffery J. Mondak & Shannon
I. Smithey, Dynamics of Public Support for the Supreme Court, 57(4) J. Pol. 1114, 1116 (1997).
See Caldeira & Gibson, supra note 31, at 637; Gibson, Caldeira, & Spence, supra note 30, at 354–357,
361, 363–364 (public confidence “picks up two types of variance: short-term satisfaction with the performance of the institution and long-term attachments to the institution itself. We tend to see the former
source of variance as dominant but admit that the evidence is ambiguous.”).
See Gibson, Caldeira, & Spence, supra note 30, at 355, 359 (“[S]pecific policy disagreements with the
Court do not directly erode overall satisfaction with the institution’s performance.”); Mondak & Smithey,
supra note 36, at 1124–1125 (“Public support for the Supreme Court tends to be both high and stable—
aggregate traits that seemingly reveal an institution largely insulated from short-term shifts in public
preferences.”).
Mondak & Smithey, supra note 36, at 1116 n.2.
See, e.g., Gibson, Caldeira & Spence, supra note 30, at 355 tbl.1 (providing data on “Confidence in the
Leaders of the U.S. Supreme Court” from 1973 to 2000).
Mondak & Smithey, supra note 36, at 1118–1119 (tracking public support for the Court from 1972 to
1994, and showing that it consistently exceeds support for the executive branch and Congress); Gibson,
Caldeira, & Spence, supra note 30, at 355 (reporting data from 1973 until 2000 that shows public confidence in the Court is generally stable).
20
I•CON 11 (2013), 13–33
been the most favored institution of government.”42 Data also show that at least since
1987, the Court has enjoyed significant bedrock of diffuse support.43 Caldeira and
Gibson summarize several of their studies by noting that the Supreme Court has
enjoyed a fairly substantial “reservoir of goodwill” among the American people.44
These results, arrived at using different metrics, testify to one point that is crucial for
our argument: while the Court acts, at times, in a CM manner, it enjoys public loyalty,
not just approval. Though the majority of the public may at times disagree with Court’s
decisions, these CM decisions do not normally undermine the public’s basic commitment to support the Court.45 Thus, we acknowledge that the CM difficulty in its literal
sense does exist. Notable examples in which the Court maintained a CM stand even after
learning of public disapproval include its flag-burning decisions46 and its school prayer
decisions.47 Yet, while theorists who dissolve the CM difficulty demonstrate that, as a
matter of fact, the Court’s decisions remain within the public’s “zone of acquiescence,”48
we argue that the public and its representatives accept and support the Court as an institution that possesses a CM authority. As elaborated below, we further argue that this
position has a normative consequence: it solves the CM difficulty in its literal sense.
The position that the Court has the “final say” in questions of constitutional
meaning (a position known as “judicial supremacy”49) is accepted, if not assumed,
by politicians and the general public.50 Yet, at times, institutional actors still resist
42
43
44
45
46
47
48
49
50
John R. Hibbing & Elizabeth Theiss-Morse, Stealth Democracy: Americans’ Beliefs About How Government
Should Work 99–100 (2002); see also Marshall (1989), supra note 20, at 138–141 (“[T]he Court has
consistently won more approval than Congress or the executive branch (at least since the 1970s).”);
Friedman, supra note 21, 15 (“The justices regularly outpoll the Congress and often even the President in
terms of public support or confidence.”), and 372.
Gibson, supra note 32, at 840–841 (summarizing six surveys between 1987 and 2008).
James L. Gibson & Gregory A. Caldeira, Citizen, Courts and Confirmations 38, 42 (2009); see also James L. Gibson
& Gregory A. Caldeira, Have Segal and Spaeth Damaged the Legitimacy of the U.S. Supreme Court?, 4
(July 4, 2009) (unpublished manuscript, available at http://papers.ssrn.com/ abstract=1436426) (“The
U.S. Supreme Court is a deeply legitimate institution.”); Gibson, Caldeira, & Spence, supra note 30, at 360
(“loyalty toward the Court is reasonably strong and widespread.”) and 364.
Gibson, supra note 32, at 837–843.
Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990).
Engel v. Vitale, 370 U.S. 421 (1962); Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963); see
also Lawrence Baum & Neal Devins, Why the Supreme Court Cares About Elites, Not the American Public,
98 Geo. L.J. 1515, 1556–1560 (2010) (surveying the divergence between public opinion and the Court’s
decisions); Frederick Schauer, Judicial Supremacy and the Modest Constitution, 92 Cal. L. Rev. 1045, 1046,
1058–1059 (2004) (arguing that in issues such as school prayer, flag burning, child pornography, the
regulation of “indecency,” and defendants’ rights, the Court acted in a CM manner in the literal sense).
See, e.g., Friedman, supra note 21, at 373, 379; Klarman, supra note 24, at 16–18.
Keith E. Whittington, Political Foundation of Judicial Supremacy 5–8 (2007) (distinguishing between judicial review and judicial supremacy).
See, e.g., Larry D. Kramer, The Supreme Court, 2000 Term: Foreword: We, the Court, 115 Harv. L. Rev. 4,
6–7 (2001) (“as a descriptive matter, judges, lawyers, politicians, and the general public today accept the
principle of judicial supremacy—indeed, they assume it as a matter of course.”); Gibson, supra note 32,
at 832 (reporting that in three surveys conducted in 2001, 2005, and 2008, 60.7%, 56.8%, and 53.8%
of respondents, respectively, were aware that the Court “has the last say when there is a conflict over the
meaning of the Constitution”); Whittington, supra note 49, at 5, 15, 23, 27 (“despite occasional voices
of dissent, crucial government officials have generally supported the judiciary and recognized its claim
to being the ultimate interpreter of constitutional meaning.”), and 284–90 (demonstrating that only on
relatively rare historical circumstances do presidents challenge judicial supremacy).
Solving the countermajoritarian difficulty
21
this position.51 However, it is hard to find resistance to the CM authority of judicial
review, at least in recent decades, even among institutional actors who are directly
constrained by the Court’s decisions.52 As Richard Pildes recently pointed out, “the
modern Congress typically treats the Court as the exclusive authority over constitutional issues.”53
Indeed, apart from several contenders in the legal academia,54 the Court’s authority to review the constitutionality of legislation is almost consensual.55 One indicator
that led Caldeira and Gibson to conclude that the Court enjoys a high level of diffuse support came from a 1987 survey, in which a relatively high level of respondents
expressed disapproval of the following assertion: “the power of the Supreme Court to
declare acts of Congress unconstitutional should be eliminated.”56 Neal Devins asserts
that “citizens and lawmakers look especially to the Court to check Congress.” For this
reason, he further explains, “Court decisions striking down federal statutes look more
like exercises of delegated authority than like countermajoritarian judicial review.”57
Barry Friedman summarizes that “by and large, for now, the people are simply content
with the system of judicial review.”58
51
52
53
54
55
56
57
58
See, e.g., Edwin Meese III, The Law of the Constitution, 61 Tulane L. Rev. 979, 983 (1987) (asserting that
Supreme Court rulings on issues of constitutionality do “not establish a supreme law of the land that is
binding on all persons and parts of government henceforth and forevermore”).
See, e.g., Pildes, supra note 25, at 133 (“It has been many generations since Congress retaliated against
the Court through measures such as eliminating the Court’s Term, expanding or shirking the size of the
Court, impeaching a justice, or stripping the Court of jurisdiction over major areas.”); Neal Devins, The
Majoritarian Rehnquist Court? 67 Law & Contemp. Probs. 63, 69–70 (2004) (titling a subsection: “Members
of Congress Support Independent, Scrutinizing Judicial Review of Federal Statues,” and adding that
today’s Congress “rarely casts doubt on either the correctness of the Court’s ruling or, more fundament­
ally, the Court’s power to authoritatively interpret the Constitution.”); Larry Alexander & Lawrence
B. Solum, Popular? Constitutionalism?, 118 Harv. L. Rev. 1594, 1638 (2005) (book review) (“The kind of
constitutional work the Supreme Court does Term after Term, in case after case, is now overwhelmingly
accepted by all of the branches of government and the citizenry at large.”).
Pildes, supra note 25, at 147. See also Mark A. Graber, The Countermajoritarian Difficulty: From Courts to
Congress to Constitutional Order, 4 Annu. Rev. Law Soc. Sci. 361, 364 (2008) (surveying several other indication of elected representatives’ support of the Court and its judicial review authority).
See, e.g., Mark Tushnet, Taking the Constitution Away from the Courts 154–176 (1999).
See, e.g., Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 227 (2004)
(“The acceptance of judicial authority is most apparent . . . in the all-but-complete disappearance of public challenges to the Justices’ supremacy over constitutional law.”); Neal Devins, Should the Supreme Court
Fear Congress?, 90 Minn. L. Rev. 1337, 1359 (2006) (“[E]ven though some Supreme Court decisions trigger a backlash by those who disagree with the Court’s rulings, the American people nonetheless support
judicial review and an independent judiciary.”).
Caldeira & Gibson, supra note 31, at 1128–1129.
Devins, supra note 52, at 65; see also id. 73, 80–81.
Friedman, supra note 21, at 371; see also Jesse H. Choper, Judicial Review and National Political Process 48
(1980) (“judicial review has been institutionally adopted by continuing consensus of American society
as an integral rule of the system.”); Farber & Sherry, supra note 4, at 30 (“Most people seem to approve
the Supreme Court as an institution and approve of its constitutional role.”); Kevin L. Yingling, Justifying
the Judiciary: A Majoritarian Response to the Countermajoritarian Problem, 15 J.L. & Pol. 81, 94–96 (1999)
(“Significant evidence indicates that people prefer that the courts decide such constitutional disputes
regardless of the substantive outcome. . . . [E]ven though the public does not always support the outcomes, they do support the entity which produces those outcomes. . . .”).
22
I•CON 11 (2013), 13–33
To summarize this section, despite some methodological and terminological differences among social scientists, there is a wide consensus among scholars that the
American public and their representatives persistently accept and support the Court’s
CM institutional function.
3.2. Judicial review as a mechanism
The Constitution anchors a substantive thesis regarding the course that American
society should follow. However, there is disagreement concerning the content of this
thesis. As explained above, this dispute finds expression in the different justifications
proposed for judicial review.59 In addition to the dispute regarding the substantive
thesis directing the constitutional endeavor, a second kind of debate ensues over the
day-to-day implications embedded in a particular substantive thesis. We can all agree
that the Constitution anchors a liberal democracy that “takes rights seriously,”60 yet
argue whether such a commitment implies that the government may require us to
purchase health-care insurance. A third kind of debate could concern the question
of what kind of review mechanism over legislation (if any) is required to ensure that
American society continues in the right constitutional course.61
Choosing the right mechanism raises two issues. The first of these concerns the best
means to achieve the desired result, the best way to ensure that the people are bound
to the substantive goal. For example, one may claim that “thin,” procedural demo­
cracy is the vision anchored in the Constitution.62 According to this line of thought,
protecting basic democratic procedures may indeed justify some kind of legislationreview mechanism. As a matter of choosing the right mechanism, one may claim that
it is better to entrust the review power in the hands of a second legislative chamber.
Such a review mechanism will not force standards of legal logic on political peddling
and logrolling, which are essential to the legislative process, and which do not hinder democratic procedure. As a matter of choosing the most efficient mechanism for
achieving the desired substantive goal, so the claim goes, judicial review will just be
comparatively less efficient.
The second issue is the normative legitimacy of different mechanisms. The CM difficulty is an example for a normative legitimacy problem of one such mechanism, i.e.,
“judicial review.”
Scholars who justify judicial review of legislation attempt to show that a world with
judicial review is morally superior to a world without it. They argue that a review
mechanism is instrumental in fostering certain valuable outcomes, such as the protection of disadvantaged groups, the preservation of democratic procedures, or the
assurance of certain basic moral values. Moreover, these scholars contend that the
best review mechanism for achieving their constitutional goal is judicial since the
59
60
61
62
See supra section 2.1.
Ronald Dworkin, Freedom’s Law 16–17, 72–78, 212–216 (1996).
Cf. Alexander & Solum, supra note 52, at 1630 (distinguishing between constitutionalism, which is not
problematic in terms of the CM difficulty, and the judicial mechanism that enforces it, which is).
See, e.g., Ely, supra note 4, at 87–101.
Solving the countermajoritarian difficulty
23
justices hold certain expertise or competence that allows them to ensure the fulfillment of the desired goal.
While no one doubts that the justices hold legal expertise,63 the exposure of the
indeterminacy of legal norms, especially those at the focus of Supreme Court cases,
undermined significantly the claim that legal expertise awards the Court with a special ability to discover the one correct answer in constitutional cases.64 In regards
to questions of political morality that are the focus of Supreme Court cases, many
scholars deny that the Court holds any relevant superior expertise or competence in
comparison to other institutions.65 The CM difficulty is thus not merely a problem of
unaccountable justices deciding contrary to majority will, but a problem of justices
doing so without possessing any relevant superior ability or knowledge.66
But even if the justices have the relevant expertise that ensures that they will arrive
at the correct legal and moral answer, it does not necessarily confer judicial review
with normative legitimacy. Expertise, legal, moral or in policy issues, is not enough
to normatively legitimate authority. Authority does not simply follow from expertise.
In other words, “[y]ou might be correct, but what makes you boss?”67 This expert/
boss fallacy occurs when one thinks that being an expert is sufficient basis for legitimating authority.68 There is no point in counting noses among the public regarding
questions of expertise,69 yet the expert’s authority cannot be driven solely from her
superior knowledge. “[T]he doctor’s right to make decisions and perform procedures
on us,” David Estlund further explains, “comes mainly from our consent, not from the
doctor’s expertise.”70
3.3. Solving the CM difficulty and legitimating the Court’s CM authority
The CM difficulty is solved since the public and its representatives accept the Court’s
judicial review authority and award the Court their enduring support.71 While this
63
64
65
66
67
68
69
70
71
See, e.g., David S. Law, A Theory of Judicial Power and Judicial Review, 97 Geo. L.J. 723, 748, 752 (2009).
See, e.g., Or Bassok, The Sociological-Legitimacy Difficulty, 26 J.L. & Politics 239, 247–251 (2011).
See, e.g., Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation (2006).
See Bickel, supra note 12, at 80 (if “behind all judicial dialectic there was personal preference and personal
power and nothing else” then this is a reality “on which we cannot allow the edifice of judicial review to
be based, for if that is all judges do, then their authority over us is totally intolerable and totally irreconcilable with the theory and practice of political democracy.”).
See Estlund, supra note 16, at 3. See also Thomas Christiano, The Constitution of Equality 119–121, 241–
242 (2008) (arguing that in political decisions, expertise is not enough for legitimating authority). Contra
Waldron, supra note 9, at 49 (claiming that judicial review might have been acceptable “if there were a
philosophical elite who could be trusted to work out once and for all what rights we have and how they
are to be balanced against other considerations.”).
Estlund, supra note 16, at 22, 40.
Hanna Fenichel Pitkin, Introduction, in Representation 1, 20 (Hanna Fenichel Pitkin ed., 1969).
Estlund, supra note 16, at 3. See also id. at 119 (“Roughly, no authority without consent.” Emphasis in the
original.).
See, e.g., Friedman, supra note 21, at 15 (“[T]he more salient Supreme Court decisions generally meet with
great public approval. And even when they do not, the public supports the Court’s right to decide cases
nonetheless.”) and 379; Yingling, supra note 58, at 94–96 (“Not only does the public support the institution
of the Supreme Court, but they also support its ability to invalidate legislation using judicial review.”).
24
I•CON 11 (2013), 13–33
solution relies on the Court’s “democratic credentials,” it does not undermine the case
in favor of CM judicial review since the Court does not need to mirror public opinion.72 Even when the public disagrees with a certain decision making it CM, the more
dur­able public support for the Court and its judicial review authority remains firm.73
Thus, we acknowledge that judicial review at times does counter public opinion and
does so over relatively long periods.74 Yet, we argue that the public and its representatives want a Court that is willing to exercise its judicial review authority in a CM
fashion. The Court is the “boss” in issues of judicial review since the public and its
representatives accepted it as such.
Against the claim that the Court is a deviant institution since it counters the majority will, we show that the Court is a majoritarian institution since the public and its
representatives accept the CM aspect of its work and award the Court their enduring support. Some Court’s decisions lack specific support, yet the Court’s sociological
legitimacy as an institution counters the claim that the Court does not correspond to
the majoritarian aspect of democracy. The Court’s judicial review authority is thus
shielded from the claim that it is CM in the literal sense not because it does not decide
cases in CM fashion, but because the public and its representatives accept this authority. The majoritarianism aspect of the difficulty is solved, rather than dissolved, since
while the Court may act in a CM fashion, it is not a CM institution.
Judicial review is relatively superior to other mechanisms for reviewing legislation not
because justices possess some special knowledge or because they enjoy an outsider perspective. In the American context, the Court’s special trait is its sociological legitimacy.
The Court’s unique ability to operate a mechanism to review legislation is based on the
contingent fact that of the three branches it is currently, by far, the most accepted institution to hold a CM authority.75 In other words, the Congress or the President may be
better equipped in terms of expertise than the Court to make the correct constitutional
decision in a concrete case.76 However, their ability to make the correct decision is limited in scenarios in which the public hold a contradictory opinion. Indeed, many scholars lament over representatives’ “permanent campaign,” i.e., their constant attempt
72
73
74
75
76
Cf. Jeremy Waldron, The Core of the Case Against Judicial Review, 115 Yale L.J. 1346, 1394 (2006) (“[T]o
the extent that we accept judges because of their democratic credentials, we undermine the affirmative
case that is made in favor of judicial review as a distinctively valuable form of political decision-making.”).
See Gibson, supra note 32, at 840 (“Big majorities of the American people do not want to do away with the
Supreme Court; roughly a majority wants to protect the Court’s jurisdiction; and sizeable majorities trust
the Court.”); id. at 842 (“even when the Court makes unpopular decisions its legitimacy is not at risk.”).
See Pildes, supra note 25, at 116–117 (claiming that scholars who present the Court as a majoritarian
institution “paint a dangerously misleading picture of how constrained the Court actually is”); see also
supra text accompanying notes 46–47.
See Law, supra note 63, at 791 (“In [the US] and elsewhere, courts known for striking down supposedly
majoritarian legislation have nevertheless enjoyed high levels of public support that put other government institutions to shame.”); see also supra the discussion in section 3.1(a).
See Frank B. Cross, Institutions and Enforcement of the Bill of Rights, 85 Cornell L. Rev. 1529, 1539–1550
(2000) (“Congress can ensure that it receives better legal advice than can the Court, which must suffer whichever advocates appear before it. The Executive Branch may have the best case of all for legal
quality.”).
Solving the countermajoritarian difficulty
25
to correspond to the latest public opinion poll.77 In comparison to the Court, these
branches are not sociologically legitimated to act in a CM fashion nor are they inclined
to act in such fashion. The Court’s sociological legitimacy as a CM institution rather
than any kind of expertise grants it with normative legitimacy to function in a manner
in which other institutions cannot. Based on empirical evidence, some scholars argue
that the Court’s sociological legitimacy is still at least partly built on a public belief that
the Court holds expertise.78 Yet, it is important to emphasize that according to our solution, the Court’s normative legitimacy is based on public acceptance of the Court’s CM
authority, rather than the acceptance of the Court’s expertise by itself.
Our solution thus awards normative legitimating meaning to sociological legitimacy.79 In a reality fraught with disagreements over substantive moral issues, the
American public and its representatives have chosen and re-chosen judicial review
as the procedure for settling their constitutional disagreements thus endowing it with
normative legitimacy.80 Whether this happened following President Roosevelt’s failure
to pack the Court,81 or only as a result of the success of Brown,82 it is clear that in recent
decades, the Court’s CM authority has been, for all practical matters, undisputed.
The people, of course, may change their mind at some point. The public’s support
for the Court, even its most durable diffuse support, may decrease to a point that our
solution is no longer viable.83 Such a development is not expected to occur overnight,
since even strong resentment towards a series of specific decisions does not immediately influence the level of the diffuse support for the CM institution. There may also
be various shifts in judicial behavior before such a crucial crisis takes place.84 But since
77
78
79
80
81
82
83
84
See, e.g., David M. Ricci, Good Citizenship in America 207 (2004); Jeff Manza, Fay Lomax Cook, &
Benjamin I. Page, Introduction, in Navigating Public Opinion 3, 4 (Jeff Manza, Fay Lomax Cook, &
Benjamin I. Page eds., 2002) (surveying commentators that criticize the development of “poll driven
leadership”).
Gibson & Caldeira, supra note 44, at 8, 15–16, 60–61, 70, 80–81, and 119.
See A. John Simmons, Justification and Legitimacy 122, 129–133 (2001).
See Friedman, supra note 21, at 16 (“If anything should be evident by the conclusion, it is that the
Supreme Court exercises the power it has precisely because that is the will of the people.”); cf.
Waldron, supra note 72, at 1371–1373 (“[E]ven though the members of the society we are imagining
disagree about rights, they need to share a theory of legitimacy for the decision-procedure that is to
settle their disagreements.”). While Waldron wants exactly such a societal agreement on a decisionprocedure, he would probably view the public’s decision to approve the Court’s judicial review power
with disdain.
See, e.g., Friedman, supra note 21, at 196 (“The true significance of 1937 . . . was plain for all to see. The
American people signaled their acceptance of judicial review as the proper way to alter the meaning of
the Constitution, but only so long as the justices’ decisions remained within the mainstream of poplar
understanding.”).
See, e.g., Whittington, supra note 49, at 2–3, 25 (claiming that judicial supremacy has dominated
American constitutional law since the Warren Court); Kramer, supra note 55, at 220–221 (“But here is
the striking thing: after Cooper v. Aaron, the idea of judicial supremacy seemed gradually, at long last, to
find wide public acceptance … [B]y the 1980s … acceptance of judicial supremacy seemed to become the
norm.”).
See, e.g., Barry Friedman, The Politics of Judicial Review, 84 Tex. L. Rev. 257, 328 (2005) (“negative information, especially a steady flow of it, can decrease diffuse support . . .”).
See infra the discussion in section 4.5.
26
I•CON 11 (2013), 13–33
we argue that the normative legitimacy of the institution of judicial review rests (at
least to some extent85) on public support, the loss of public support must affect this
legitimacy. Otherwise, it runs the risk of referring to nothing more than some vague
notion of acquiescence.86
Thus, the Court’s judicial review authority is legitimated by public acceptance, not
by the morality of the Court’s substantive vision as proven at the professor’s writing
table. Normatively legitimating the mechanism of judicial review based on public
acceptance does not mean awarding normative legitimacy to the substantive constitutional vision that stands at the basis for the Court’s decision to strike down a specific
statute. The Court’s substantive interpretation can be rejected by the public on several
occasions, and yet the Court still has enduring public support, and its judicial review
authority is accepted in general. The mechanism is accepted; the substantive decision
is debated. Hence, while the Court does not necessarily represent values that the public
supports, the mechanism of judicial review is reconciled with a majoritarian system.
The public and its representatives have accepted the Court’s authority to defy
their first-order preferences in the name of constitutional second-order constraints.
Those who are bound have chosen their constraining mechanism and have supported
its operation. Theirs is not merely a one time pre-commitment or a fictive thought
experiment.
4. Solving the CM difficulty: critique and rejoinder
4.1. The reliability of public opinion polls
Public opinion polls are notoriously susceptible to wording and framing effects, and to
other forms of manipulations.87 They can create a misleading illusion that a definite
public opinion exists where there is, in fact, widespread public ignorance and poorly
informed opinions.88 Some scholars view public opinion as an artifact constructed for
the purpose of political legitimation of the elites’ hegemony.89
Be that as it may, the CM difficulty in its literal sense exists only if we take opinion
polls as reflective of public opinion. Indeed, according to this difficulty, the Court is
CM whenever it counters the majority will as reflected in the results of public opinion
85
86
87
88
89
We should stress again that the solution presented is restricted to solving the literal CM difficulty. We leave
the effect of this solution on the traditional CM difficulty, as well as on other normative difficulties, for
future investigation.
Cf. Pildes, supra note 25, at 148 (arguing that the mere contention that the public “supports” the legitimacy of judicial review despite CM decisions “turns the majoritarian thesis into a theory of Burkean consent or acquiescence in the status quo . . .”); Clifton McCleskey, Judicial Review in a Democracy: A Dissenting
Opinion, 3 Hou. L. Rev. 354, 362 (1966) (“Even if there has been acquiescence, this does not necessarily
prove the democratic character of judicial review; it may simply prove our attachment to constitutional
principles, even undemocratic ones.”); Perry, supra note 5, at 126.
See, e.g., George F. Bishop, The Illusion of Public Opinion 8–17, 58–89, 138–148 (2005).
See, e.g., James S. Fishkin, The Voice of the People 80–84 (1995); Bishop, supra note 87, at xvi.
Pierre Bourdieu, Public Opinion Does Not Exist, in Sociology in Question 149 (Richard Nice trans., 1993).
Solving the countermajoritarian difficulty
27
polls. In other words, our solution to the CM difficulty relies in part on the same instrument on which the difficulty itself is built upon. If the instrument is flawed, both the
difficulty and the solution are refuted.
4.2. Justice cannot be measured in terms of public support
Our solution deals well with a scenario in which judicial review over legislation is morally justified (in terms unrelated to public attitudes), and in which the public opposes
the specific decision while awarding the Court sociological legitimacy. In such a scenario, our solution relies on the durable character of the Court’s sociological legitimacy. The Court can hand down unpopular yet morally justified decisions in several
cases without harming its sociological legitimacy. The Court does not capitulate to
public opinion and yet its CM difficulty, or at least the majoritarian aspect of the difficulty, is solved. In this manner the Court fulfills the Constitution’s purpose of placing
certain issues beyond the reach of public opinion by relying on the public’s durable
support.90
Our solution does raise serious difficulties in two other scenarios. First, when the
Court has sociological legitimacy yet acts immorally. Second, when the Court lacks
sociological legitimacy yet acts morally. In the first scenario, our solution solves the
CM difficulty for an immoral Court; our argument awards normative legitimacy to an
immoral court. In the second scenario, our solution does not apply to a moral Court;
our argument fails to award normative legitimacy to a moral court.
For the first scenario consider the following example: a legislator in an imaginary
country enacts a law forbidding the detention of citizens without evidence of wrongdoing. A court that has sociological legitimacy, strikes down this law. The court justifies its decision based on terrorist threats. If the public opposes detention without
evidence and thus supports the law that prohibits it, in striking down the said statute
this court acts in a CM fashion. Yet this court has sociological legitimacy and thus our
solution applies!91
In the second scenario, a court deprived of sociological legitimacy, acts morally by
striking down anti-miscegenation laws. We hope that the public will endow a decision
that is moral (and legal) with specific support, but this, of course, will not always be
the case. Thus, a moral decision may yet be CM. In such situation, if the people do
not endow the court with sociological legitimacy, our solution will not apply. Thus,
90
91
See, e.g., West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638 (1943) (“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy,
to place them beyond the reach of majorities and officials and to establish them as legal principles to be
applied by the courts.”).
Cf. Korematsu v. U.S., 323 U.S. 214 (1944) (upholding of the internment of American citizens of Japanese
decent during World War). Korematsu is a clear example of a decision that was highly immoral yet popular. See Robert H. Jackson, Wartime Security and Liberty Under Law, 1 Buff. L. Rev. 103, 115 (1951) (noting
that in Korematsu, “[o]ne view, certainly the popular view at the time . . . held exclusion and detention
of citizens of Japanese ancestry constitutionally valid.”); Friedman, supra note 21, at 372–373 (“the currents of public opinion against the interned Japanese came to be very strong.”).
28
I•CON 11 (2013), 13–33
we cannot solve the CM difficulty for a court that acts morally but lacks sociological
legitimacy.92
Our solution sets sociological legitimacy as the sole criterion for the normative legitimacy of judicial review. It is focused on peoples’ attitudes toward the Court rather
than on the morality of the Court’s decisions.93 Thus, even if sociological legitimacy
endows an institution with some degree of normative legitimacy, its actions can be so
atrocious that it lacks any normative legitimacy in terms of the “classical” justifications for judicial review. In other words, the Court’s normative legitimacy awarded
on the basis of public enduring support of the Court does not ensure that the Court’s
decisions will be just according to the various justifications to the Court’s power.94
Thus, as other attempts to confront the CM difficulty, our solution is suited only for
reasonably just societies—such as the current American society—in which there is
some minimal consensus, both in the public and among the justices, regarding the
need to protect fundamental human rights.95
4.3. Happy slaves96
Since the solution we offer is not based on hypothetical consent given by fictive images
that hold all the “right” normative reasons, the public’s actual enduring support may
be given for all the wrong reasons. Thus, the public’s enduring support for the Court
has a normative legitimating meaning even if that support is based on a desire to avoid
making decisions by clinging on the justices’ assertions. In this scenario, our solution endows the support of “happy slaves” with normative meaning. Indeed, while the
solution we offer depends on public attitudes towards the Court, in the end it may in
fact legitimize a situation of less self-government.
Such a scenario is not far-fetched. While the actual reasons for the public’s support
for the Court and for judicial review are beyond the scope of this article, it would be
extremely presumptuous to assume that they are grounded on some grand understanding of the concept of constitutionalism or any other normative theory. For
example, the Court’s performance in Bush v. Gore can hardly be considered as its high
point in terms of legality.97 Yet, social scientists discovered that the Court enjoyed “a
92
93
94
95
96
97
Cf. Am. Fed’n of Labor v. Am. Sash & Door Co., 335 U.S. 538, 555–556 (1949) (Frankfurter, J., concurring) (“A Court is not saved from being oligarchic because it professes to act in the service of humane
ends.”).
Cf. Simmons, supra note 79, at 133 (criticizing attitudinal accounts of political legitimacy on making their
judgments too much about public’s attitudes and too little about the acts in questions).
See Paul W. Kahn, Political Theology: Four New Chapters on the Concept of Sovereignty 131 (2011)
(“Legitimacy, however, is neither a necessary condition of justice nor a substitute for justice. But correspondingly, justice is not a substitute for legitimacy.”).
Cf. Waldron, supra note 72, at 1360–1369 (explaining that the “core of the case against judicial review”
is designed to hold only in the gray sheds of a reasonably democratic society).
Cf. Don Herzog, Happy Slaves (1989) (criticizing consent theories).
See, e.g., Cass R. Sunstein, Lawless Order and Hot Cases, in A Badly Flawed Election 75, 77, 103 (Ronald
Dworkin ed., 2002) (claiming that the decision “produced order without law,” and that “legal materials
did not support the outcome in Bush v. Gore, especially on the question of remedy, and hence the Court
acted in a lawless fashion.”).
Solving the countermajoritarian difficulty
29
slight upward spike in its legitimacy”98 as a result of this decision. Frank Michelman
suggests that this rise in support of the Court may demonstrate that “what Americans
want above all else of the Supreme Court is assurance that someone is there to bring
the country to heel when chaos looms or politics threaten to get out of hand.”99
Indeed, the people may just get used to the “responsible adult” making for them
all the important political decisions or fall under the spell of her mesmerizing charisma.100 This is the problem with a self-constraining solution that is based on submission to a master rather than on creating a lag of time or a second chance for the people
themselves to reconsider their decision to stray from their self-commitment.101
Moreover, the situation is aggravated by the danger of the creation of a self-perpetuating cycle in terms of impoverishing the people’s political-decision abilities. As James
Bradley Thayer already warned, the rise of judicial review would inevitably bring the
people (or at least their representatives) to leave constitutional issues to the Court
and avoid taking seriously their obligation to uphold the Constitution. Over time, the
­people and their representatives lose their constitutional sensitivity, ensuring that
they will not be able to reclaim their role as deciders.102
Yet our solution still offers a way out: at some point in time the people may tear
their judicial constraints and decide for themselves. Moreover, we can even require
that in order to legitimize the Court’s CM authority, public acceptance of the Court
would have to comply with certain conditions of adequacy, such as being adequately
informed.103
4.4. The insult in the denial of the right to equal participation in
decision-making
The CM difficulty captures the claim that judicial review shifts political decisions from
the people and their representative institutions to nine justices and thus infringes
the citizens’ right to equal democratic participation in political decision-making.104
Scholars who confront the difficulty by justifying the Court’s CM authority offer “compensation” in terms of protecting other values. However, some scholars claim that
98
99
100
101
102
103
104
Gibson, supra note 32, at 842.
Frank I. Michelman, Machiavelli in Robes? The Court in the Election in The Longest Night 256, 265–267
(Arthur J. Jacobson & Michel Rosenfeld eds., 2002).
Cf. Jerome Frank, Law and the Modern Mind 5 (2009) (1930) (“an infantile longing to find a father-substitute in law.”); Hibbing & Theiss-Morse, supra note 42, at 86 (“The people are surprisingly smitten with the
notion of elite experts making choices . . .”).
Cf. Estlund, supra note 16, at 122 (noting that there are consent theories that imply “that a person could
become a salve, under the complete authority of another person, by consenting to it, so long as this genuinely reflects his or her will.”).
James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, in Legal Essays
39 (1908).
See Estlund, supra note 16, at 117, 121–123 (discussing different requirements of adequacy).
See, e.g., Thomas Christiano, The Rule of the Many 3, 15 (1996) (“When decisions must be made that
affect the interests of all, then each has a right to an equal say in making these decisions.”); Waldron,
supra note 9, at 20, 36 (“self-government and participation in politics by ordinary men and women, on
equal terms, is itself a matter of fundamental right.”).
30
I•CON 11 (2013), 13–33
“there is a certain dignity in participation, and an element of insult and dishonor in
exclusion, that transcends issues of outcome.”105
Our solution tries to narrow this insult. We offer to honor the people’s voice on the
question of whether the justices should have the power of judicial review.106 While the
public cannot directly participate in the Court’s decision-making, according to our
solution, public opinion has an ongoing influence on the normative legitimacy of the
decision-maker. One should bear in mind that the people have voice with regards to
representative institutions also mainly in terms of electing the decider rather than in
direct participation in decision-making.107
4.5. Diffuse support in the eye of the judiciary
Though public support may be important for legitimating the Court’s CM authority, it does not follow that our solution’s practical recommendation for justices is to
adopt public opinion as their “guiding star” in adjudicating cases. Justices and commentators remind us time and again that the justices do not conduct public opinion
polls, and that “constitutional questions are not settled even by a consensus of present
public opinion.”108 In theory at least, a court can stick to a certain method of constitutional decision-making (such as, for example, originalism or rights-based theories)
without any consideration of the public’s support for the Court.109
Yet a complete “acoustic separation”110 between the normative impact of the
Court’s enduring public support and the justices’ decision-making practices seems
unrealistic.111 Some of the dissolution theorists point exactly on the influence public
opinion has on the justices,112 and there is ample anecdotal evidence that the justices
105
106
107
108
109
110
111
112
Id. at 27–28, 39–41 (“it is an insult to say that the issues are too important or perhaps too formalistic for
[the people] (rather than the judges) to decide …”), 46, and 51.
See Tom R. Tyler, Psychological Perspectives on Legitimacy and Legitimation, 57 Annu. Rev. Psychol. 375, 392
(2006) (“a focus on [sociological] legitimacy empowers the members of organizations and societies.”).
See Slavko Splichal, Introduction: Public Opinion and Democracy Today, in Public Opinion and Democracy Vox
Populi–Vox Dei? 1, 3 (Slavko Splichal ed., 2001) (“Representative democracy excludes ‘the people’ from
direct influence on national power.”).
Muller v. Oregon, 208 U.S. 412, 420 (1908) (constitutional questions “are not settled by even a consensus
of present public opinion,” since a written constitution is designed to “place[. . .] in unchanging form limitations upon legislative action . . . “); see also, e.g., James G. Wilson, The Role of Public Opinion in Constitutional
Interpretation, 1993 BYU L. Rev. 1037, 1120 (1993) (“many Justices have separated the judicial domain,
excluding public opinion, from the political domain, where public opinion reigns supreme.”).
See, e.g., Cass R. Sunstein, A Constitution of Many Minds 127–133 (2009) (analyzing theories that resist
giving weight to public opinion).
Cf. Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 Harv.
L. Rev. 625 (1984) (distinguishing between “rules addressed to the general public and rules addressed to
officials”).
Cf. Michael L. Wells, “Sociological Legitimacy” in Supreme Court Opinions, 64 Wash. & Lee L. Rev. 1011,
1050–1053 (2007) (arguing for the combination of “sociological” and “legal” legitimacy in judicial
decision-making).
See, e.g., Friedman, supra note 21, at 374 (summarizing several recent studies and pleading “at long last to
move past the question of whether the justices are influenced by popular opinion, a question whose only
conceivable answer is yes . . .”).
Solving the countermajoritarian difficulty
31
are paying attention to the public’s confidence in the Court.113 Hence, such an influence exists with life tenured justices, who supposedly have no normative incentive to
follow public opinion, and whose ethos of independence even provides them with a
counter-incentive.114 Surely, if public support of the Court becomes an essential part
of a salient solution to the Court’s most prominent normative difficulty, it would be
unrealistic to assume that justices would not become even more interested in their
“ratings” in polls. Subsequently, the discussion of the solution to the CM difficulty
must take into account the influence such a discourse of legitimization would have on
judicial decision-making and judicial behavior.
One obvious danger is that the Court’s awareness of the importance of its enduring
public support would encourage the Court to engage in all sorts of strategic maneuvers. Even if it does not follow public opinion in each and every case in an attempt to
preserve its support, the Court may prefer to remain inside a “safety zone” of social
consensus in order to preserve its reservoir of public confidence.115 Since the “size” of
the Court’s reservoir of support is not constant, and is at least somewhat potentially
influenced by the public’s reaction to particular decisions, the Court may choose to
refrain from particularly unpopular decisions, or to make particularly popular decisions, or both. Should this happen, arguably, our solution may lead, at the bottom line,
to populist judicial behavior.
A populist stance by the Court does not only run against the very purpose of
judicial review as a mechanism to constrain the majority in the name of fundamental principles,116 it also corrupts the logic of the legal language. If the Court
decides cases according to the logic of public support instead of legal logic, values such as consistency, coherency and predictability will be sacrificed, in certain
cases, in pursuit of public satisfaction.117 The legal language thus becomes a product of justices estimating how popular opinion is going to develop rather than a
principled regime.118
113
114
115
116
117
118
See, e.g., Devins, supra note 52, at 76 (“Furthermore, there is some reason to think that the Court is paying attention to this polling data. Consider Chief Justice Rehnquist’s 1999 year-end report. The Chief
Justice approvingly cited a February 1999 Gallup Poll showing that ‘80 percent of Americans surveyed
stated that they had a “great deal” or “fair” amount of trust for the judicial branch of government, far
exceeding figures for the other branches.’”).
See Helmut Norpoth & Jeffrey A. Segal, Popular Influence on Supreme Court Decisions, 88(3) Am. Pol. Sci.
Rev. 711, 712 (1994).
See, e.g., Friedman, supra note 83, at 327 (describing diffuse support as “the leash on which the Court
operates”).
See, e.g., David A. Strauss, The Modernizing Mission of Judicial Review, 76 U. Chi. L. Rev. 859, 900 (2009)
(“The problem is that the courts may be too ready to yield to the political process and may therefore fail to
vindicate principles that courts, and courts alone, are well suited to enforce.”).
See, e.g., Bickel, supra note 12, at 69, 258 (devising the technique of “passive virtues” in order
to avoid the corruption of the legal language in face of public pressures); Robert C. Post & Neal
S. Siegel, Theorizing the Law/Politics Distinction: Neutral Principles, Affirmative Action, and the Enduring
Legacy of Paul Mishkin, 95 Calif. L. Rev. 1473, 1484–1488, 1496–1497, 1506 (2007) (discussing
the tension between adhering to legal language and corrupting legal logic in order to preserve popular support).
See Strauss, supra note 116, at 898.
32
I•CON 11 (2013), 13–33
These concerns should not be underestimated. However, one must remember that
enduring public support is not expected to serve as any kind of guidance for constitutional decision-making. Indeed, we do not claim that the Court’s normative legitimacy
is based on the justices’ ability to reflect public opinion.
Conclusion: Ulysses wants to be bound all the time
Attempts to justify the Supreme Court’s CM judicial review authority implicitly
accept the story of Ulysses and the Sirens119 as a metaphor for describing the relations between the People, the Constitution, and the Court. According to this metaphor, the People (Ulysses) are well aware of the ill influence of short-term preferences
(Ulysses’s desires while hearing the Sirens sing) on their deep constitutional commitments (the ship’s course). Hence, they make a pre-commitment and bind themselves to the Constitution (the ship’s mast) in order to ensure that they will not cause
the ship to stray from its course. Despite Ulysses’s transient protests (current public
opinion or the legislators’ opinion on the substantive issue) when hearing the Sirens
sing, the ropes (the Court) bind him to the mast, and save him from losing his mind
and changing the ship’s course. Without the ropes, “[i]f voters were allowed to get
what they wanted,” Stephen Holmes predicts that “they would inevitably shipwreck
themselves.”120
As elaborated above, constitutional theorists have suggested different “right”
courses for society to adopt.121 Protecting the human rights of disadvantaged groups
of society, preserving democratic procedures, or guarding certain basic moral values
are all examples of society’s “right course” extracted from the Constitution.122 The
CM judicial review authority serves as a mechanism that ensures adherence to the
chosen course, even against the current desires of the public. Thus, the CM nature of
judicial review authority is understood as a virtue, since it ensures society will continue in the right direction.123
In recent years, some legal scholars have attempted to dissolve the CM difficulty.
Based on empirical work showing that the Court does not usually stray from the preferences of the public, these scholars claim that the Court is not a CM institution at
119
120
121
122
123
Homer, The Odyssey, bk. XII, lines 148, 151–152 (Martin Hammond trans., 2000). See Daryl J. Levinson,
Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev. 657, 657 (2011)
(“Constitutionalism is often analogized to Ulysses binding himself to the mast in order to resist the fatal
call of the Sirens.”); Jon Elster, Ulysses Unbound 88–105 (2000) (using this metaphor to explain the
Constitution as a pre-commitment mechanism).
Stephen Holmes, Precommitment and the Paradox of Democracy, in Constitutionalism and Democracy 195,
196 (Jon Elster & Rune Slagstad eds., 1988).
See supra section 2.1.
See Roberto Gargarella, In Search of a Democratic Justice—What Courts Should Not Do: Argentina, 1983–
2002, 10 Democratization 181, 182 (2003) (describing several justifications for the CM authority).
Michael J. Klarman, Majoritarian Judicial Review: The Entrenchment Problem, 85 Geo. L.J. 491, 492 (1997)
(“Those who praise countermajoritarian judicial review as a virtue . . . have failed to reconcile their
defense of minority rights with the principle of majority rule.”).
Solving the countermajoritarian difficulty
33
all. The Court does not serve as binds around the Ulysses’s hands; instead, it follows
Ulysses captive will. Moreover, if the Court did try to prevent Ulysses from following
the Sirens’ song, it would, in all likelihood, fail.124
The metaphor of “Ulysses and the Sirens” indeed fails to capture the truth about the
current relationship between the American People, the Constitution, and the Court.
Its failure, however, does not stem from ignoring the Court’s majoritarian nature. The
Court does, at times, act in a CM fashion. Based on empirical works we argued that
the public and its representatives have accepted and supported the Court’s authority
to act in a CM fashion. The Court enjoys second-order enduring support even when
its decisions lack first-order specific support.125 Though Ulysses wants to change the
ship’s course when he hears the Sirens’ song and follow their seduction, he acknowledges, at the same time, the importance of the ropes that bind him to the mast. In other
words, even when the Sirens sing, the ropes’ legitimacy is established by Ulysses’s
acceptance of the role they play. His acceptance of the binds is not merely a pre-commitment made before the sirens start singing. Ulysses wants to remain bound even as
the Sirens sing; his enduring support for the ropes’ work does not stop even when he
protests vigorously.126
The CM difficulty in its literal sense is neither justified nor dissolved. It is solved.
The same factor that creates the difficulty (public opinion) is at the same time its solution. The Court may decide cases in a manner that counters public opinion, but its CM
authority is accepted by the majority of the public and its representatives. The public
and its representatives award the Court a majoritarian approval even when it acts in a
countermajoritarian fashion. The People have spoken: they want to be bound by judicial
constraints.
124
125
126
Cf. The Proper Role of the United States Supreme Court in Civil Liberties Cases, 10 Wayne L. Rev. 457, 476
(1964) (Alexander Bickel: “[A] court that decided the equivalent of five cases such as Brown v. Board of
Education in a single year would have seen the end of the institution, I am sure.”).
Cf. Pildes, supra note 25, at 148–149 (discussing the notion of second-order majoritarian support).
Like every metaphor, “Ulysses and the Sirens” has its defects. See, e.g., Jeremy Waldron, Law and Disagreement
261–271 (1999); Jon Elster, Solomonic Judgments 196 (1989).