Solving the Countermajoritarian Difficulty?

Abstract

For many years, scholars have attempted to justify the 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 merely 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 mechanism to constrain the public’s immediate preferences.

Keywords: countermajoritarian difficulty, judicial review, legitimacy