A Story of Judicial Deference to the Will of the People

51 Pages Posted: 17 Mar 2021 Last revised: 20 Dec 2021

See all articles by Adam Shelton

Adam Shelton

Institute for Justice

Anthony B. Sanders

Institute for Justice

Date Written: March 5, 2021


One of the central and continual debates of constitutional litigation is how much deference the courts owe the elected branches in determining the constitutionality of challenged laws. Many of the debates take place in the abstract and focus on the reasons why the courts should defer. Yet a critical and commonly ignored part of this debate is how often courts actually defer in determining the constitutionality of legislation and how the amount of deference has increased, or decreased, since the founding era.

This article adds context to the longstanding judicial deference debates. It does so by surveying eight terms employed by the courts which signal judicial deference to the legislature due to the idea that legislation represents the will of the people—a commonly offered justification for deference. The terms surveyed include (1) will of the people; (2) judicial restraint; (3) will of the majority; (4) deference to the political branches; (5) defer/deference to Congress; (6) second-guess the legislature; (7) highly deferential; and (8) unelected judges. The survey shows that the use of these terms is on the rise, even as the number of cases the federal courts hear has trended downward in recent years.

This is especially true for the Supreme Court and the cornerstone term: will of the people. The Supreme Court has used this term since the early years of the republic. In the early years, the Court often, but not exclusively, used the term to refer to the Constitution as the will of the people. This changed in the mid to late 1880s, especially with the appointment of the first Justice Harlan who employed the phrase repeatedly to reference legislation. By the mid-1900s, the Court used it to refer to free speech principles and the need for election accessibility for the government to know the “will of the people.” But in the past two decades the Supreme Court has used the term to refer to legislation more than any two decades other than between 1880-1900. Together with the other phrases, this article demonstrates that at least rhetorically, the inclination of the Supreme Court has become increasingly deferential.

Keywords: Judicial Deference, Will of the People

Suggested Citation

Shelton, Adam and Sanders, Anthony B., A Story of Judicial Deference to the Will of the People (March 5, 2021). NYU Journal of Law & Liberty, Vol. 15, No. 55, 2021, Available at SSRN: https://ssrn.com/abstract=3806501

Adam Shelton (Contact Author)

Institute for Justice ( email )

901 N. Glebe Road
Arlington, VA 22203
United States

Anthony B. Sanders

Institute for Justice ( email )

520 Nicollet Mall
Suite 550
Minneapolis, MN 55402
United States

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