The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary

Abstract

Theoretical and descriptive studies of the Supreme Court exhibit a curious parallel. Both usually begin from the premise that judicial review is “a deviant institution in a democratic society.” Much normative work claims that independent judicial policymaking is rarely legitimate in a democracy because, with few exceptions, elected officials rather than appointed judges should resolve social controversies. In a frequently cited passage, Alexander Bickel asserts that the Supreme Court is “a counter-majoritarian force” in our system of government. Much empirical work, by comparison, insists that independent judicial policymaking seldom takes place in a democracy because, with few exceptions, judges appointed and confirmed by elected officials sustain whatever social policies are enacted by the dominant national coalition. Robert Dahl observes that it is “unrealistic to suppose that a Court whose members are recruited in the fashion of Supreme Court justices would long hold to norms of Right or Justice substantially at odds with the rest of the political elite.”

Political Accountability Under Alternative Institutional Regimes

“…This result seems consistent with the familiar claim that separation-of-powers institutions, such as review by an independent entity, allow the primary decision-maker to "shift the responsibility" for policy outcomes (e.g., Fiorina 1982;Graber 1993). …”

Political Accountability Under Alternative Institutional Regimes

“…Literature in this vein invokes the diffusion of political accountability to explain, among other things, congressional delegation of power to the President or to executive agencies (e.g., Fiorina 1982;Aranson et al 1982), acceptance of independent judicial review by the political branches (e.g., Graber 1993;Salzberger 1993), and decisions by the President to seek congressional approval for controversial decisions (e.g. Nzelibe 2007).…”

“…We can compare the Voter's expected utility from the Opt-In Checks and Balances regime to her expected utility under the Mandatory Checks and Balances regime, when the government is unified, by subtracting (19) from (49). Doing so yields:…”

The Countermajoritarian Difficulty: From Courts to Congress to Constitutional Order

“…The seminal works in this literature include Whittington (2007Whittington ( ,2005, Gillman (2006Gillman ( , 2002, Pickerill & Clayton (2004), Clayton & May (1999), Lovell (2003, Frymer (2003Frymer ( , 2007, McMahon (2004), Hirschi (2004), Ginsburg (2003, Sweet (2000), Graber (1993), Lasser (1988, and Dahl (1957).…”

“…• The Countermajoritnrian Difficulty (Pickerill & Clayton 2004) or the political construction of judicial power (Whittington 2007) (Burgess 1992, Curtis 2000, Devins 1996, Dinan 1998, Fisher 1988, Friedman 1993, Levinson 1988 had detailed how other political actors often engaged in constitutional interpretation, sometimes challenging (Agresto 1984, Kramer 2004) and sometimes buttressing (Graber 1993, Lovell 2003) judicial authority. Friedman's (1998Friedman's ( , 2000Friedman's ( , 2001Friedman's ( , 2002a At the very least, a majority in at least one elected branch of the national government has 368 Graber historically thought government by judiciary more attractive politically than presidential authority to determine constitutional meanings.…”