2023-09-06: Dorf Majoritarian Difficulty and Theories of Constitutional Decision Making 2010
- Treats the Supreme Court as an entity rather than as a changing set of nine individuals bargaining to reach an opinion that garners five or more votes.
- As a result, the treatment is insensitive to changes in membership, but for a single statement that personnel changes may work against counter-majoritarian decisions.
- Relies heavily on Barry Friedman's The Will of the People, a book published in 2010 before Gorsuch in place of Scalia, Kavanaugh in place of Kennedy, Barrett in place of Ginsburg, and Jackson in place of Breyer.
- What is the time-frame for the Supreme Court to course-correct to follow the Will of the People? A few years? Decade? Till sufficient personnel change?
- How to reconcile the Will of the People with Roberts Court (examples: District of Columbia v. Heller (2008)
, ShelbyCounty-Holder (2013)
), CitizensUnited-FEC (2010)
, or Thomas/Alito Court (examples: Rucho-CommonCause (2019)
, New York State Rifle & Pistol Association v. Bruen (2022)
, Dobbs v. Jackson Women's Health Organization (2022)
) in which personnel changes have resulted in a deepening of counter-majoritarian behavior.
Table of Contents
- Recent scholarship in political science and law challenges the claim that judicial review in the United States poses what Alexander Bickel famously called the "counter-majoritarian difficulty." (page 283)
- As Barry Friedman shows in his magisterial history of the tug-of-war over constitutional meaning between the People and the Supreme Court, criticism of the Court for its supposedly counter-majoritarian character has tended to track the substantive unpopularity of the Court's decisions. For a time, the Court can disregard such criticism, but if public opinion does not eventually come in line with the judicial view, constitutional amendment, changes in judicial personnel, and/or changes in judicial doctrine will typically bring judicial understandings closer to public opinion. Consequently, American courts have not, over the long run, acted as strongly counter-majoritarian bodies. (283)
- Are courts that roughly follow public opinion capable of performing what is generally understood as their core counter-majoritarian function--protecting minority rights against majoritarian excesses? Do American courts, in other words, have a "majoritarian difficulty?" (285)
- This Article examines the implications of the substantial role that majority opinion plays in shaping judicial decision making from the perspective of constitutional interpretation. I ask whether there is a normatively attractive account of the practice of judicial review that takes account of the Court's inability to act in a strongly counter-majoritarian fashion. (285)
- By contrast, accounts of the Supreme Court as a kind of third legislative chamber fit better with its majoritarian bias. (286)
- Interpretation and Majoritarianism
- First, consider the tendency of the Supreme Court to provide only weak resistance to movements to infringe civil rights and civil liberties in times of war. (286)
- Conversely-and problematically for present purposes-judges are highly unlikely to stand up for the civil rights of truly marginalized groups. (287)
- For [John Hart] Ely [in Democracy and Distrust], the special justification was representation reinforcement: Where the mechanisms of democracy themselves have failed, courts can find a warrant in the Constitution for intervening. Baker v. Carr and Reynolds v. Sims (288)
- ... the Burger and Rehnquist Courts left the Warren Court's edifice of criminal procedure jurisprudence intact but hollowed it out by eliminating remedies. (289) [does the change reflect the will of the majority?]
- Brown v. Board of Education of Topeka (1954)
... has been transformed into a principle of color-blindness that is now most commonly used to protect the status quo against race-conscious efforts to aid racial minorities. [example:] ParentsInvolved in Community Schools v. Seattle School District No. 1 (289) [does the change reflect the will of the majority?] [due to change of personnel not the same court?]
- ... but race-based affirmative action has proven highly unpopular. (290)
- A Court subject to majoritarian influence transformed a principle initially understood as affording protection to "discrete and insular minorities" into a constitutional rule whose primary role appears to be to limit the occasional efforts of majoritarian politics to constrain itself in favor of minority interests. (290)
- The point is that the Supreme Court's adoption of the rhetoric and much of the reality of color-blindness was a predictable consequence of the Friedman thesis, in light of the unpopularity of affirmative action. Despite its broad influence on the shape of constitutional law, Ely's advice to courts--act in a counter-majoritarian fashion to protect the long-term systemic losers in the political process--has proven nearly impossible for the Court to follow. And that is exactly what an attentive student of the Friedman thesis would have predicted. (291) [due to change of personnel not the same court?] [Republicans leveraged Roe v. Wade (1962)
to confirm judges that spent decades (Rehnquist on) attacking Warren before getting to Dobbs v. Jackson Women's Health Organization (2022)
- By contrast, originalism--if honestly applied, an important caveat to which we shall return in a moment--offers positions that have been thoroughly rejected. A majority opinion so holding would be simply unthinkable, because "in our age of checks, credit cards and electronic banking, the issue is off the agenda: no Supreme Court would now reexamine the merits, no matter how closely wedded it was to original intent theory." (292)
- As a prescriptive account of constitutional interpretation, originalism is a non-starter. Not infrequently, it asks judges to take strongly counter-majoritarian views, not in the service of currently controversial positions, but in the service of positions that have for decades or even centuries been relegated to the margins of public opinion. (293)
- Living Constitutionalism
- Indeed, we might even reformulate the Friedman thesis to state that the Supreme Court will inevitably engage in living constitutionalism, even when it denies doing so. (295)
- The leading theories of constitutional interpretation-whether of the representation-reinforcing, originalist, or living variety-exist for the purpose of justifying judicial review, not for justifying the failure to exercise the power of judicial review in any given circumstance.
- The Supreme Court's death penalty jurisprudence is instructive because it illustrates the substantial ambition and limited reach of living constitutionalism. (295)
- Although Ronald Dworkin has not championed living constitutionalism per se, the coherentism of his view of law as integrity is fairly characteristic of how judges committed to living constitutionalism produce counter-majoritarian results. We may envision raw public opinion as the pre-interpretive intuitions of the public at large." The coherentist judge brings these pre-interpretive intuitions, along with any relevant legal materials, such as constitutional provisions and precedents, into reflective equilibrium. (297)
- Living constitutionalism, as preached and practiced by those most committed to it, is substantially counter-majoritarian. (298)
- Third-Legisiative-Chamber Theories
- It is thus tempting to generalize and say that every theory of constitutional interpretation designed to justify counter-majoritarianism will end up placing demands on the judiciary that it is unable to meet. Yet surprisingly, that generalization may be false. (300)
- At least one family of theories--what I shall call "third-legislative-chamber" theories--seeks to justify counter-majoritarianism but does not necessarily demand of courts results that they cannot produce. (300)
- Even if we assume that there are objectively correct answers to questions about constitutional rights, the critics charge, there is no reason to assume that judges--who frequently disagree with each other on just the same issues that divide legislators--are more likely to reach the correct answers. No matter, Fallon replies. Because of the "commonly held assumption" "that legislative action is more likely to violate fundamental rights than is legislative inaction,"" a system that includes judicial review will provide greater protection for constitutional rights than a system in which legislators are the final arbiters of constitutional meaning. (301) [inaction on incorporation, discrimination, apportionment, civil rights, voting rights, etc.]
- The real issue is not how much regulation is optimal but what regulation is optimal. A third-legislative-chamber account thus needs to be supplemented by a substantive defense of judicialreview. And the supplemental account may end up including an interpretive theory like representation-reinforcement, originalism, or living constitutionalism. If so, then the third-legislative-chamber account will not be an alternative to these other theories but a way of reconceptualizing the work they do. (303)
- The proper function ofjudicial review in third-legislative-chamber accounts is to nudge the legal system off of a rights-under-protective point and onto a somewhat less under-protective or slightly overprotective point. That is a modest goal, consistent with the relatively modest capacity of courts for counter- majoritarian decisions. (303)
- The record of judicial review in the United States shows that courts rarely act in a strongly counter-majoritarian way, and that when they do, the political system eventually finds ways of bringing the courts back in line with the considered opinions of the public. (304)
- Representation-reinforcement, originalism, and living constitutionalism all aim to justify counter-majoritarian judicial interventions beyond the demonstrated capacity of the courts. (304)
- By contrast, third-legislative-chamber accounts ofjudicial review only require courts to act in an occasionally counter-majoritarian fashion, and for that reason, do not succumb to the majoritarian difficulty. ... must be supplemented by other, more substantive, theories. (304)