Foreword: From the Countermajoritarian Difficulty to Juristocracy and the Political Construction of Judicial Power
15 Pages Posted: 10 Jul 2007
Scholars in law, political science, and other disciplines are concentrating on two dimensions of the increased empowerment of courts throughout the world and the United States. The first set of questions concerns the causes of juristocracy. Grand constitutional theory treated unelected justices as seizing power from elected officials, creating the tension between democracy and judicial review that animated the countermajoritarian difficulty. More recent scholarship suggests that judicial review is often politically constructed, that elected officials have numerous political and policy reasons for empowering constitutional courts. The second set of questions concerns the consequences of juristocracy. Grand constitutional theory treated the Supreme Court as the forum of principle in American life, insisting that Justices had special capacities to listen for voices from the margins. More recent scholarship suggests that justices are more likely to promote elite agendas, handing down decisions that favor the powerless only when doing so is consistent with elite values and interests.
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