Graber 2008 The Countermajoritarian Difficulty: From Courts to Congress to Constitutional Order

2023-09-06: Graber The Countermajoritarian Difficulty: From Courts to Congress to Constitutional Order 2008

• This review documents how scholarly concern with democratic deficits in American constitutionalism has shifted from the courts to electoral institutions. [Nice of y'all to notice.]
• Contends that recognition of the structural, countermajoritarian elements of the legislative and executive are being (newly) recognized.
• Fundamental claim is that the executive, in particular in its conflicts with the legislature, and the legislature, in seeking to deflect responsibility and blame, enpower the Court to assume judicial supremacy.
• Conceives of the counter-majoritarian difficulty as one between the branches of government, not between the Court and the People.
• Article needs to show the counter-majoritarian decisions of the Supreme Court that preceded the counter-majoritarian actions of Congress and the President, unless its simply a recounting of academia awaking.
• Relies heavily upon Whittington Political Foundations of Judicial Supremacy and Hacker & Pierson Off Center: The Republican Revolution and the Erosion of American Democracy
• Does not take cognizance of
  • Phillips The Emerging Republican Majority or
  • Gingrich or
  • the consequences of political gerrymandering combined with Dark Money leading to the diminished number of competitive House districts and substition of primaries for determining the membership of the House in place of the general election or
  • The Right and
  • Chemerinsky's Worse than Nothing (2023).

The works surveyed in this review observe that

• apparent democratic deficits in one institution may be consequences of democratic deficits in other institutions,
• explore how all American institutions respond to constitutional questions,
• elaborate how constitutional practices structure the ways political institutions make public policies, and
• suggest how judicial review may alleviate or aggravate coherence, polarization, bias, and accountability difficulties.

• Alexander Bickel, the Yale Law professor who coined the phrase countermajoritarian difficulty, regarded judicial review as "a deviant institution in the American democracy" (Bickel 1962, p. 18). (362) [written during the Warren Court, after Brown, reapportionment, etc.]
• The countermajoritarian difficulty is emigrating from the judiciary to the elected branches of government. (362)
• Mann & Ornstein's (2006) work, The Broken Branch: How Congress Is Failing America and How to Get It Back on Track, suggests that the national legislature is the new "deviant institution in the American democracy." They complain about "the transformation of intense partisanship into virtually tribal politics," a "decline in accountability," "a decline in congressional deliberation and a de facto delegation of authority and influence to the president" (pp. x, 12).
• This review documents how scholarly concern with democratic deficits in American constitutionalism has shifted from the courts to electoral institutions. (362)
• [Listing with comments on a number of books supporting the contention of democratic deficits in electional institutions]
• The Countermajoritarian Difficulty Reviled -- Whittington
• The argument is that at least some, often shifting, subset of the lawmaking elite supports particular judicial decisions or the trend of judicial decision making. [some, shifting, subset] (364)
• What courts hardly ever do is protect powerless minorities that have no champions among the power-holding majority. [repressive Taney, Lochner, Rehnquist, Thomas/Scalia/Alito] (364)
• Neither author [Whittington, Frymer] regards the countermajoritarian difficulty as having much explanatory power or normative force. (365)
• Judicial supremacy in the United States has been challenged only after reconstructive presidents gain office. These presidents, Jefferson, Jackson, Lincoln, Roosevelt, and Reagan, have electoral permission to uproot the previous constitutional order. Whittington (2007, p. 74) points out, "As the old regime collapses, the judiciary is likely to be both a visible defender of the old order and one that survives electoral turnover." For this reason, judicial supremacy "is a likely target for a reconstructive leader seeking to dismantle the previous regime." The resulting presidential attacks on the federal judiciary are as rooted in constitutional conviction as in political interest. ... Whittington (2007) notes that attacks on judi- cial supremacy in the United States take place only during those rare historical moments when issues of constitutional principle become most salient politically. In his view, "When the political debate begins to focus on the 'constitutional baseline' itself, judicial authority becomes more tenuous and other political actors make stronger claims to interpretive primacy" (p. 22). (366)
• Justices who have established precedents favoring executive power when affiliated presidents were in office may be less tempted by short-term benefits to modify those rules dur- ing the relatively short interregnum of preemp- tive rule. Whittington (2007, p. 169) declares, "[H]aving embraced broad theories of inherent presidential powers, judges are unlikely to hedge them simply because they are being exercised by oppositional presidents." [See Major Questions Doctrine and when it is invoked] (367)
• The Supreme Court has declared neither more laws nor more important laws unconstitutional during reconstructive presidencies. [Anti-New Deal decisions stopped by the "switch in time"] (367)
• This underlying political support for judicial power suggests that the Supreme Court even during reconstructive presidencies does not "thwart the will of a majority of the representatives" in at least one elected branch of the national government. [Majority? Southern Democrats, fearing that Roosevelt would appoint racial liberals to the federal bench, helped defeat the Court packing plan in 1937 (McMahon 2004). ] (368)
• Black and Blue -- Frymer
• Entry [of African Arnericans to labor unions] was problematic because desegregation pitted white workers who were staunch members of the Roosevelt coalition against persons of color who were giving an increasing share of their vote to Democrats. [of their vote? who did they vote for prior? could they vote at all prior?] (369)
• "By the 1960s," Frymer (2007, p. 3) explains, "instead of one national labor policy, the federal government had two, .... The National Labor Relations Board (NLRB) was given responsibility for determining labor policy. Federal courts were empowered to determine civil rights policy. [determin civil rights or to enforce civil rights?] (369)
• Political liberals on both sides of the aisle self-consciously foisted civil rights issues onto the federal judiciary during the 1960s .... Few reforms were adopted with the civil rights movement consciously in mind. [foisted and few ... in mind. Where should enforcement of civil right law take place? ] (369)
• [what alternative to litigation in the 1940' and 1950's before the Civil Rights Act of 1964 and Voting Rights Act of 1965?]
• Frymer (2007, p. 133) maintains, "All branches of the American state-electoral, administrative, and judicial--are fundamentally flawed in their ability to effectively represent the will of the public." (370)
• Faced with liberal politicians unwilling to side with labor and liberal justices who enthusiastically sided with the civil rights movement, many white union members turned to more conservative politicians for relief. Persons of color were the immediate beneficiaries of political efforts to channel labor disputes to the courts, but white workers who defected from the Democratic Party unwittingly empowered antiunion employers in the long run. Republican Party electoral victories, made possible in part by a politically enfeebled union movement, "allowed Republican presidents to change the composition of the NLRB, leading to the overturning of dozens of labor doctrines which ... are ... critical to the massive decline in union power" (Frymer 2007, p. 4). (370)
• Frymer's primary concern might be labeled the coherence difficulty. The federal judiciary and the NLRB were entirely separate institutions whose decisions on labor relationships were not coordinated by any more central agency (371)
• Black and Blue concludes by demonstrating how judicial policymaking raises bias difficulties. (371)
• Accountability difficulties might be added to this list of concerns with judicial power in a constitutional democracy. (371) [Accountability difficulties reflect Counter-Majoritarian decisions and life tenure]
• Whether politically constructed judicial review presents distinctive accountability, coherence, polarization, and bias difficulties is contestable. (371)
• White workers who blamed liberal justices for integrating their unions abandoned the Democratic Party in droves during the late 1960s and afterwards (Frymer 2007, p. 4; Greenberg 1996) (371)
• The Countermajoritarian Difficulty Revived
• Polarization is the buzzword for describing contemporary American politics. Both Republicans and Democrats are more united internally than at any other point in history and more distinct from each other (McCarty et al. 2006, pp. 23-24). This partisan polarization does not reflect any underlying polarization of the general electorate. Prominent social scientists insist that no fundamental change has recently taken place in public opinion. Fiorina et al. (2005, p. 8) [Response to January 6th in particular and Trump in general.] (373)
• [article changes tone and method 2/3rds of the way through...becomes decidedly more critical of the Republican party.]
• The countermajoritarian difficulty suffers from normative and institutional myopia. Bickel and his followers focused obsessively on majoritarianism, ignoring other democratic problems that may be aggravated or ameliorated by judicial decisions declaring laws unconstitutional. (380)
• Majoritarianism is only one of many democratic commitments. Good democracies seek policies that are coherent, appeal to most citizens (majorities), and are capable of being revised by popular (majoritarian) acclaim. (380)
• In practice, whether judicial review presents countermajoritarian, coherence, polarization, accountability, and bias difficulties varies by case and is often contestable. (381)
• That electoral politics, in turn, is often wracked with countermajoritarian, coherence, polarization, accountability, and bias difficulties is partly rooted in constitutionally mandated procedures. These democratic deficits require rethinking basic institutional practices in the United States and are largely immune to constitutional law. (381)