107 Pages Posted: 25 Nov 2002 Last revised: 11 Nov 2011
Date Written: November 11, 2011
How is it that the countermajoritarian difficulty became the central frame for constitutional theory for the last fifty years? That is the question taken up in this, the last installment of the history of the countermajoritarian difficulty. The piece explains in successive sections that the countermajoritarian problem so prominent in legal scholarship is neither the same as the occasional criticism leveled at courts engaged in controversial exercises of judicial review, nor necessarily related to the task of political theory of explaining the legitimacy of any branch of government in a democracy. Rather, the academic obsession with the countermajoritarian difficulty was born out of historically contingent circumstances present at the middle of the twentieth century, circumstances that haunt us still - though they need not.
The criticism that courts are acting contrary to the will of the majority has been heard throughout history, but it was most prominent during the Progressive Era. It made sense then, as courts were striking down legislative enactments of recent vintage with a strong democratic pedigree. At mid-century, however, popular criticism of the Supreme Court sometimes included this countermajoritarian claim, and sometimes did not, depending precisely on what the Court was doing. Nonetheless, academics became fixated on the problem, even when the public was far less concerned and the criticism inapt. Why did this happen?
It is important to recall that the countermajoritarian problem emerged in the course of justifying judicial review, not criticizing it. After the Realists had exploded the myth that constitutional standards were determinate, academics at mid-century struggled to define a role for courts that justified aggressive judicial review in defense of individual liberty and equality. Their concern about this judicial role was expressed in countermajoritarian terms, not because those terms were apt, but because they echoed the Progressive Era battle cries of their most honored teachers - Thayer, Holmes, Hand and Frankfurter. The problem these academics struggled with was unique to political liberals, who - at that time - supported both halves of the countermajoritarian equation: they approved of the work of the Warren Court, but believed in popular democracy as well. Unlike their predecessors, these academics had come to need the Court, but struggled with their inheritance of skepticism about judicial review.
Today, liberal academics are more concerned with criticizing the Court than with justifying its work. Yet, echoing Progressive Era critics, these scholars are attacking the Court by raising concerns about its democratic pedigree. These two projects sound similar, but they are very different. Constitutional "theory" flip-flops between attacking the Court and justifying it, depending primarily on who is sitting on the Supreme Court bench and the agenda they are pursuing. It should not be thus; we need a constitutional theory that is less historically contingent and more enduring. The historical perspective offered here can help us see this.
Suggested Citation: Suggested Citation
Friedman, Barry, The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five (November 11, 2011). Yale Law Journal, Vol. 112, p. 153, 2002; NYU School of Law, Public Law Research Paper No. 50. Available at SSRN: https://ssrn.com/abstract=312024 or http://dx.doi.org/10.2139/ssrn.312024