Upside-Down Judicial Review

Abstract

The countermajoritarian difficulty assumes that the democratically elected branches are majoritarian and the unelected Supreme Court is not. But sometimes just the opposite is true. Sometimes it is the democratically elected branches that are out of sync with majority will, and the Supreme Court that bridges the gap-turning the conventional understanding of the Court’s function on its head. Instead of a countermajoritarian Court checking the majoritarian branches, we see a majoritarian Court checking the not-so-majoritarian branches, enforcing prevailing norms when the representative branches do not. The result is a distinctly majoritarian, upside-down understanding of judicial review. This Article illustrates, explains, and explores the contours of this phenomenon, using three classic cases of the countermajoritarian difficulty — Brown v. Board of Education, Furman v. Georgia, and Roe v. Wade — to anchor the discussion. Democracy never looked so undemocratic, nor (in an upside-down way) has it ever worked so well.

Keywords: judicial review, constitutional theory, Supreme Court decisionmaking