Squaring the Circle: Democratizing Judicial Review and the Counter-Constitutional Difficulty
Minnesota Journal of International Law, Vol. 16, p. 61, 2007
54 Pages Posted: 21 Mar 2006
The current polarization in Supreme Court appointments illustrates a problem that I call the counter-constitutional difficulty. Constitutions, unlike ordinary legislation, can be made and changed only by supermajoritarian mechanisms. The United States Constitution, however, has an Achilles heel. Its meaning can be transformed by changing the membership of the Supreme Court. Appointments, unlike amendments, do not require the consent of a supermajority. A number of decisions by the Court mobilized religious conservatives to seek a voice in appointments as a means of transforming the meaning of the Constitution. The appointments battles that swirled around the nominations of John Roberts, Harriet Miers, and Samuel Alito illustrate the strategy and power of this social movement. Presidents pay attention to factions important to their coalition who care deeply about Supreme Court appointments. The counter-constitutional difficulty is that the appointments process for the United States Supreme Court allows factions to shape the meaning of the Constitution thereby undermining the protections afforded by Article V.
The counter-constitutional difficulty has less bite in the democracies of Western Europe or Canada. These polities adopted judicial review in the latter half of the twentieth century and learned from the American experience that a court with the power to construe a constitution is not only a court of law but also a powerful political actor. As a consequence, they created mechanisms of political accountability that democratized judicial review. The nations of Europe typically select justices by means of a legislative supermajority. Canada provides for a legislative override of constitutional decisions. If the United States required a legislative supermajority to select justices, then it would become difficult, if not impossible, for factions to transform the Constitution by changing the membership of the Supreme Court. If the United States allowed Congress to overrule the Supreme Court, then political factions angered by the Court would seek to override its decisions directly rather than indirectly by engaging in appointments battles. Democratizing judicial review, in short, reduces the power of factions to use the appointments process to amend the Constitution.
Keywords: comparative constitutional law, judicial review, constitutional theory, constitutional politics
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