Solving the Countermajoritarian Difficulty?

11 International Journal of Constitutional Law (I•CON ) 13-33 (2013)

21 Pages Posted: 20 Apr 2011 Last revised: 2 Oct 2016

See all articles by Or Bassok

Or Bassok

University of Nottingham - Faculty of Law and Social Sciences

Yoav Dotan

Hebrew University of Jerusalem - Faculty of Law

Date Written: April 19, 2011

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

Suggested Citation

Bassok, Or and Dotan, Yoav, Solving the Countermajoritarian Difficulty? (April 19, 2011). 11 International Journal of Constitutional Law (I•CON ) 13-33 (2013), Available at SSRN: https://ssrn.com/abstract=1814563 or http://dx.doi.org/10.2139/ssrn.1814563

Or Bassok (Contact Author)

University of Nottingham - Faculty of Law and Social Sciences ( email )

Nottingham, NG8 1BB
United Kingdom

Yoav Dotan

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel
972548820462 (Phone)

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