The Two Countermajoritarian Difficulties

Abstract

In recent years, the countermajoritarian difficulty has split into two. According to its traditional version, the difficulty arises when unaccountable Justices strike down statutes passed by electorally accountable branches of government. According to the newer, literal version, the difficulty arises when Justices strike down statutes that are supported by the majority according to public opinion polls. By explicating the difference between the two versions of the difficulty, I expose the deep influence of public opinion polls on American constitutional thought. For many years, scholars conflated the two difficulties under one banner and offered normative justifications for the Court’s countermajoritarian authority. In recent years, many constitutional theorists, oriented toward social science, attempt to dissolve the literal countermajoritarian difficulty by showing that the Court is not countering the majority will but following it. I further demonstrate that the distinction helps to explain four additional issues of constitutional theory. First, this distinction explains the connection between the countermajoritarian difficulty and the “passive virtues” technique that Alexander Bickel devised for the Court. Second, it exposes the importance of the distinction between cases that the media covers and non-visible cases. Third, it sheds new light on the basis of the Court’s power. Finally, this distinction is crucial for a better understanding of a puzzle that stands at the heart of the rise of judicial power worldwide.

Keywords: Alexander Mordecai Bickel, the countermajoritarian difficulty, public opinion polls, public confidence, juristocracy