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ICON (2013), Vol. 11 No. 1, 1333 doi:10.1093/icon/mos047
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School of Law. All rights reserved. For permissions, please e-mail:
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Solving the countermajoritarian difficulty ?
Or Bassok* and Yoav Dotan**
For many years, scholars have attempted to justify the US
Supreme Courts countermajori-tarian judicial review authority. In
recent years, several scholars have attempted instead to dissolve
the countermajoritarian difficulty, claiming based on empirical
evidence, that the Supreme Courts decisions are usually in sync
with public opinion. We adopt a third and novel path in tackling
this long-debated normative difficulty. We acknowledge that the
Court, at times, acts in a countermajoritarian fashion. However,
based on empirical evidence that demonstrates the enduring public
support for the Court and the wide acceptance of its judi-cial
review authority by all relevant players, we argue that the
countermajoritarian diffi-culty is partly solved. Our solution is
not based on a pre-commitment taken at the time the Constitution
was created or on a mere fictitious act that is part of a thought
experiment. Rather, it is based on an ongoing acceptance of, and
support for, judicial review as a mech-anism to constrain the
publics immediate preferences.
Introduction The American Supreme Courts most prominent
normative difficulty, the counter-majoritarian (CM) difficulty,
captures two fundamental aspects of democratic gov-ernment:
majoritarianism and electoral accountability.1 The majoritarianism
aspect presents the difficulty of an unelected Court that rules in
a specific controversy against the current majority thus literally
countering the majority will. Our article offers a solution to this
aspect of the difficulty. We argue that the majority of the
American public has accepted the CM judicial constraints. While the
public sometimes opposes
* Robina Foundation Visiting Human Rights Fellow, Yale Law
School. Email: [email protected].** Edwin A. Goodman Professor
of Law, Faculty of Law, Hebrew University of Jerusalem. Email:
msdotan@
mscc.huji.ac.il. For their invaluable comments and suggestions,
we wish to thank Shai Dothan, Sebastin Elias, Noam
Y. Finger, Alon Harel, Hlne Landemore, Shay Levi, Barak Medina,
Robert Post, Reem Segev, and par-ticipants at the Yale JSD
Colloquium and the Public Law workshop at the Hebrew
University.
1 Robert A. Dahl, Can International Organizations be Democratic?
A Skeptics View, in The CosmopoliTanism ReadeR 423, 423 (Garret
Wallace Brown & David Held eds., 2010) (arguing that democracy
as a system of popular control means responsiveness and
accountability to the demos).
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14 ICON 11 (2013), 1333
specific judgments, the majority of the public and its
representatives accept, at the same time, the Courts binding
review-power.
We begin our discussion with a short analysis of the two aspects
of the CM diffi-culty. In the second section, we survey the two
major ways in which the CM difficulty was confronted by scholars.
We do not purport to offer an exhaustive survey of these attempts
to justify the Courts CM authority or to dissolve it, nor do we
attempt to evaluate the cogency of these attempts. Our sole purpose
is to situate our solution to the majoritarianism aspect of the CM
difficulty within the scholarly arena. Next, we present empirical
studies demonstrating that the Court holds a reservoir of public
support. We also survey other works that show that the public and
its representatives accept judicial review over legislation. Based
on these data, we present our solution which attributes moral
legitimacy to the Courts CM judicial review authority based on
sociological legitimacy.2 Before concluding, we discuss in the
fourth section several difficulties our solution raises.
1. The two aspects of the CM difficultyThe literal understanding
of the CM difficulty emphasizes the majoritarian compo-nent of
democracy, i.e., the correspondence with the aggregated preferences
of the populace.3 When the Court rules in a specific controversy
against the current majority as quantified by polling, it acts
counter to the majority will thus acting in a literally CM fashion.
The traditional understanding of the CM difficulty emphasizes
electoral accountability as the focus of the difficulty, i.e., the
problem with justices striking down statutes that are the fruits of
electorally-accountable branches.4
These two aspects are obviously connected. Electorally
accountable institutions are sensitive to majoritarian
preferences.5 Yet there is still a difference between the two
understandings. When the Court overrules legislation that the
majority of the public, as measured in public opinion polls,
opposes, the Courts decision is not CM in the literal sense since
the public supports the decision.6 However, it is still CM in the
traditional
2 See Richard H. Fallon, Jr., Legitimacy and the Constitution,
118 haRv. l. Rev. 1787 (2005) (distinguishing between sociological
legitimacy and normative legitimacy).
3 See, e.g., Barry Friedman, Mediated Popular Constitutionalism,
101 miCh. l. Rev. 2596, 2596 (2003) (At bottom
[countermajoritarian] often seems to be a claim, and perhaps must
be a claim, that when judges invalidate governmental decisions
based upon constitutional requirements, they act contrary to the
pref-erences of the citizenry.).
4 See, e.g., John haRT ely, demoCRaCy and disTRusT 45 (1980)
([T]he central function, and it is at the same time the central
problem, of judicial review: a body that is not elected or
otherwise politically responsible in any significant way is telling
the peoples elected representatives that they cannot govern as
theyd like.); daniel a. FaRbeR & suzanna sheRRy, JudgmenT Calls
xi (2009) (The countermajoritarian difficulty refers to the
supposedly anti-democratic nature of judicial review, since it
allows courts to overturn the handiwork of elected officials.).
5 See miChael J. peRRy, The ConsTiTuTion, The CouRTs, and human
RighTs 170 n. 4 (1982); Julian N. Eule, Judicial Review of Direct
Democracy, 99 yale l.J. 1503, 1532 (1990).
6 naThaniel peRsily, JaCk CRiTin, & paTRiCk J. egan, publiC
opinion and ConsTiTuTional ConTRoveRsy 5 (2008) (After all, if the
Court merely reflected public opinion in its decisions, then
whatever other problems it might have, it could not be described as
countermajoritarian.).
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Solving the countermajoritarian difficulty 15
sense since an unaccountable institution thwarted the will of an
accountable institu-tion. In other words, an unelected court that
enjoys public support and whose decisions are in line with public
opinion still raises the CM difficulty in its traditional sense
when it reviews legislation, because it is electorally
unaccountable.7 In this article we offer a solution or an answer
only to the majoritarian aspect of the CM difficulty.
2. Confronting the Courts CM authority
2.1. Justifications
For many years, scholars have focused on suggesting normative
justifications for the Courts CM authority. However, they did not
usually examine whether the justification they proposed addressed
one or both of the aspects captured by the CM difficulty.
These justifications usually consist of two stages. First, the
scholar would explicate a worthy normative vision or goal which can
be extracted from the Constitution.8 For example, several scholars
have identified a constitutional commitment to freedom, or to
equality or to the full humanity of every member of society as
standing at the basis of the Constitution.9 Other scholars have
claimed that preserving fundamental val-ues is not an appropriate
constitutional task.10 Thus, they claimed that no value is
inherently entrenched except the procedural process of political
majoritarianism.11 Whatever normative goal one extracts from the
constitution, justification-based approaches profess that the
chosen normative goal sets the right constitutional course for the
United States from which the People should be prevented from
straying, even if their immediate desires direct them to do so.
Second, the scholar would explain why the function of securing
societys adher-ence to this course is peculiarly suited to the
capabilities of the courts, and will not likely be performed
elsewhere if the courts do not assume it.12 In other words,
scholars who justify the Courts CM authority ascribe the Court some
special property that makes it the institution that is best fit to
ensure societys adherence to the right constitutional course.13
They explicate why an unaccountable institution that may at times
act against the majoritys opinion, is best equipped to achieve the
desired goal. For example, several scholars hold that due to their
special training or their relative
7 For further analysis of the differences between the two
difficulties, see Or Bassok, The Two Countermajoritarian
Difficulties, 31 sT. louis u. pub. l. Rev. 333 (2012).
8 See, e.g., bRuCe aCkeRman, We The people: FoundaTions 11
(1991) (describing the common thread of Rights
Foundationalists).
9 See Michael J. Perry, Protecting Human Rights in a Democracy:
What Role for Courts, 38 Wake FoResT l. Rev. 635, 638639 (2003);
Jeremy Waldron, A Rights-Based Critique of Constitutional Rights,
13 oxFoRd J. leg. sTud. 18, 20 (1993).
10 See, e.g., ely, supra note 4, at 88.11 See, e.g., id. at 181
(judicial review can appropriately concern itself only with
questions of participation,
and not with the substantive merits of the political choice
under attack.).12 alexandeR m. biCkel, The leasT dangeRous bRanCh
24 (1962).13 See, e.g., ChRisTopheR l. eisgRubeR, ConsTiTuTional
selF-goveRnmenT 13 (2001) (Most scholars and judges
assume that the Courts power is justifiable (if at all) on the
basis of its special legal expertise. . . . This view is common
ground among people who disagree radically about the nature of
legal craftsmanship.).
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16 ICON 11 (2013), 1333
insularity from public opinion (or both), judges enjoy some
institutional advantages over legislators with respect to the
process of discovering, asserting, and implement-ing human
rights.14 Other scholars claim that courts are inferior to
legislators in mak-ing substantive judgments, but their
institutional perspective as political outsiders makes their
judgments about fair process superior.15 Hence, according to all of
these attempts to justify the Courts CM authority, the Courts
normative legitimacy is based on its expertise rather than on the
peoples consent.16
2.2. The dissolution of the CM difficulty in its literal
sense
In 1957, Robert Dahl demonstrated, based on empirical data, that
Supreme Court was rarely out of line with the policies of nations
lawmaking majorities.17 Since the mid-1980s, a trickle of empirical
studies, that later became a flood, has compared poll-ing results
about salient topics with Supreme Courts decisions.18 These studies
have shown that the Courts constitutional decisions have by and
large been in sync with public opinion.19 In his comprehensive
studies of the relationship between the Courts decisions and public
opinion, Thomas Marshall concluded that the modern Court appears to
be as majoritarian as other American policy makers.20
During the last decade or so, these empirical findings have
convinced many con-stitutional theorists that the Court is
essentially a majoritarian institution: over time, it tends to
reflect the majoritys opinion rather than thwart it.21 Even if a
Court that
14 See, e.g., ChaRles blaCk, a neW biRTh oF FReedom: human
RighTs, named and unnamed 125 (1997) (Human-rights claims are made
in the name of the law, as the outcome of reasoning from
commitment; judges are practiced in this kind of reasoning and some
of them are expert at it. Emphasis in the original.). See also Alon
Harel & Tsvi Kahana, The Easy Core Case for Judicial Review,
2(1) J. legal analysis 227, 232 (2010) (examining the view that
judges are experts on rights).
15 Cf. United States v. Carolene Prods. Co., 304 U.S. 144, 152
n.4 (1938). See also, e.g., ely, supra note 4, at 7577, 75 n.*, 88,
102, and 112 (Elys theory, the pinnacle of the Carolene Products
tradition, states explicitly that judges are experts on process and
political outsiders, uniquely situated to impose the process-based
values that stand at the center of the Carolene Products
formula).
16 See david m. esTlund, demoCRaTiC auThoRiTy 34 (2008)
(distinguishing between consent and expertise as bases for
authority).
17 Robert A. Dahl, Decision-Making in a Democracy: The Supreme
Court as a National Policy-Maker, 6 J. pub. l. 279 (1957).
18 See, e.g., peRsily, CRiTin, & egan, supra note 6; David
G. Barnum, The Supreme Court and Public Opinion: Judicial
Decision-Making in the Post-New Deal Period, 47 J. pol. 652
(1985).
19 See, e.g., David Adamany & Stephen Meinhold, Robert Dahl:
Democracy, Judicial Review, and the Study of Law and Courts, in The
pioneeRs oF JudiCial behavioR 361, 372373 (Nancy Maveety ed.,
2003); Terri Peretti, An Empirical Analysis of Alexander Bickels
The Least Dangerous Branch, in The JudiCiaRy and ameRiCan demoCRaCy
123, 140 (Kenneth D. Ward & Cecilia R. Castillo eds., 2005)
(Overall, the research refutes Bickels characterization of the
Court as a countermajoritarian institution.).
20 Thomas R. maRshall, publiC opinion and The RehnquisT CouRT 3,
35, 5559 (2008). See also Thomas R. maRshall, publiC opinion and
The supReme CouRT 7, 7881, 9798, 117, 192193 (1989) (Overall, the
evidence suggests that the modern Court has been an essentially
majoritarian institution. Where clear poll margins exist,
three-fifths to two-thirds of Court rulings reflect the
polls.).
21 See, e.g., baRRy FRiedman, The Will oF The people 364365, 371
(2009) ([A]s we have seen time and time again, their decisions
plainly reflect the tug of public views.); Michael C. Dorf, The
Majoritarian Difficulty and Theories of Constitutional Decision
Making, 13 u. pa. J. ConsT. l. 283, 283 (2010) (Recent scholar-ship
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.).
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Solving the countermajoritarian difficulty 17
is armed with judicial review powers is, as a matter of logic, a
deviant institution in the American democracy,22 as a matter of
historical fact, it fits comfortably into the
democratic-majoritarian system.23 Thus, the CM difficulty in its
literal meaning is dis-solved and exposed as a myth or an illusion
since the Court is in fact a majoritarian institution.24
In recent years, many constitutional theorists have been
occupied with examin-ing mechanisms that might explain the
correlation between Courts decisions and majority opinion. The
judicial appointment process is the mechanism perhaps most
frequently invoked to explain the sync between the Courts
adjudication and the posi-tions of the public.25 Justices tend to
share the views of the public because they are picked and appointed
by a popularly elected President with the approval of the major-ity
of a popularly elected Senate.26 Another prominent mechanism is
political back-lash. According to this mechanism when a backlash
movement musters strong public support then, and only then, the
Court capitulates to public opinion.27
However, even the most adherent advocates of the dissolution
effort admit that judicial review does at times counter public
opinion. They view these occasions as an unrepresentative glitch in
the mechanism that ensures the general correlation with public
opinion.28
3. Solving the CM difficulty
3.1. The Courts enduring public support and the publics
acceptance of judicial review
Two related phenomena stand at the heart of our argument. The
first is the wide acceptance of the Courts judicial review
authority by both the public and its repres-entatives; the second
is the publics enduring support for the Court despite its
occasional
22 biCkel, supra note 12, at 18.23 Cf. Adamany & Meinhold,
supra note 19, at 380 (raising a similar claim regarding Dahls
claims).24 Michael J. Klarman, Rethinking the Civil Rights and
Civil Liberties Revolutions, 82 va. l. Rev. 1, 56 (1996).25 See
Richard H. Pildes, Is the Supreme Court a Majoritarian
Institution?, 2010 supReme CouRT RevieW 103,
139140 (2010) (Indeed, most majoritarians rely centrally on this
mechanism to explain how the Court purportedly comes to reflect
national political majorities.).
26 See, e.g., Barry Friedman, Dialogue and Judicial Review, 91
miCh. l. Rev. 577, 612 (1993) (Although federal judges are not
elected, they are appointed by Presidents who stand for popular
election. Judicial appointments often mirror the popular will that
elected a President.); Jack M. Balkin & Sanford Levinson, The
Processes of Constitutional Change: From Partisan Entrenchment to
the National Surveillance State, 75 FoRdham l. Rev. 489, 490, 495,
501 (2006) (If the Court as a whole strays too often and too widely
from the desires of the dominant forces in national politics . . .
the appointment process soon pushes the Court back into line. The
calibration is hardly perfect . . .).
27 See, e.g., FRiedman, supra note 21, at 362 (One of the
greatest engines of constitutional change has been mobilization
against Supreme Court decisions by those unhappy with the
results.); id. at 369, 383.
28 See, e.g., id., at 382 (What history shows is assuredly not
that Supreme Court decisions always are in line with popular
opinion, but rather that they come into line with one another over
time. Emphasis in the original.); Peretti, supra note 19, at 132
(While the Court does indeed often rule against majority opinion
(about one-third of the time, according to Marshall), it more often
sides with majority opinion. Emphasis in the original.).
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18 ICON 11 (2013), 1333
CM behavior. These phenomena capture public attitudes and
beliefs regarding the legitimacy of the Court and its judicial
review authority. Following scholarly litera-ture, we shall use the
phrase sociological legitimacy as the general term that
encom-passes public attitudes regarding the legitimacy of the
Court.29
These two phenomena have different manifestations, and have been
researched by different methods. But beyond the professional jargon
elaborated below, for our pur-poses the important point can be
summarized as follows. The majority of the pub-lic and the majority
of elected representatives may at times disagree with a certain
decision made by the Court or with the substantive policy reflected
in its outputs. Nevertheless, the majority of the public still
supports the Court, and judicial review is by and large accepted by
the public and its representatives. Before presenting the data
supporting these claims, we examine, in the next section, the
metric used for measur-ing the publics enduring support for the
Court.
(a) The metric for measuring enduring public support for the
Court
The notion that the public supports the Court even when it
objects to some of its deci-sions is perhaps best conceptualized by
the distinction between specific and diffuse sup-port. In its
narrowest meaning, specific support is defined as satisfaction with
the immediate outputs of the institution;30 a more expansive view
defines it as satisfac-tion with the performance of a political
institution.31 Diffuse support, on the other hand, is a fundamental
commitment to an institution and a willingness to support the
institution that extends beyond mere satisfaction with the
performance of the institution at the moment (specific support).32
Gibson and Caldeira argue that in measuring the fundamental and
relatively enduring features of the publics orienta-tion towards
the Court, the focus should be on the support for maintaining the
institu-tion. According to this view, the Court enjoys high levels
of diffuse support when most of the public objects to making
fundamental structural and functional changes in the Court.33
29 See, e.g., Allen Buchanan & Robert O. Keohane, The
Legitimacy of Global Governance Institutions, 20 eThiCs and
inTeRnaTional aFFaiRs 405, 405 (2006) (An institution is legitimate
in the sociological sense when it is widely believed to have the
right to rule.); Fallon, supra note 2, at 1795 (When legitimacy is
measured in sociological terms, a constitutional regime,
governmental institution, or official decision possesses legitimacy
in a strong sense insofar as the relevant public regards it as
justified, appropri-ate, or otherwise deserving of support for
reasons beyond fear of sanctions or mere hope for personal
reward.).
30 James L. Gibson, Gregory A. Caldeira & Lester Kenyatta
Spence, Measuring Attitudes toward the United States Supreme Court,
47 am. J. pol. sCi. 354, 356 (2003).
31 James L. Gibson & Gregory A. Caldeira, Blacks and the
United States Supreme Court: Models of Diffuse Support, 54 J. pol.
1120, 1126 (1992); see also Gregory A. Caldeira & James L.
Gibson, The Etiology of Public Support for the Supreme Court, 36
am. J. pol. sCi. 635, 637 (1992).
32 James L. Gibson, Public Images and Understandings of Courts,
in: The oxFoRd handbook oF empiRiCal legal ReseaRCh 828, 837 (Peter
Cane & Herbert M. Kritzer eds., 2010).
33 Caldeira & Gibson, supra note 31, at 637639 ([D]iffuse
support is opposition to basic structural and functional
change).
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Solving the countermajoritarian difficulty 19
At times, the public may disagree with a certain decision, or
with the substantive policy reflected in the Courts outputs. This
would reduce the publics specific support for the Court. However,
the more durable diffuse support can transcend such reactions to
the Courts concrete performance and remains unscathed.34 Only
sustained disap-pointment with the Courts decisions can lead to a
decline in the diffuse support that the Court enjoys.35
Several social scientists argue that the Courts enduring public
support can be mea-sured by surveys that examine the publics
confidence in the Court.36 Caldeira and Gibson, however, claim that
the confidence metric conflates specific support and dif-fuse
support.37 Nevertheless, public confidence does show some
resilience to unpopu-lar decisions, since it remained relatively
stable over the years, even in times when the Court has handed down
unpopular decisions.38 Since public confidence is not completely
contingent on satisfaction with the Courts immediate decisions, it
can be viewed as positioned between specific and diffuse support on
a continuum measuring the durability of public support.39 It is not
merely a measure for short-term satisfac-tion with policy outputs
but also a metric of more fundamental loyalty to the Court over the
long-term.
(b) Data demonstrating the Courts enduring public support and
the acceptance of judicial review authority
At least since the 1970s, the public, though disagreeing at
times with specific judg-ments, has mostly awarded the Court with a
steady and relatively high level of confi-dence.40 Based on the
public confidence metric, scholars have shown that aggregate public
support for the Court is stable and high,41 and that the Court has
consistently
34 Id., at 636638; Friedman, supra note 3, at 26142617.35 James
L. Gibson, Gregory A. Caldeira, & Vanessa A. Baird, On the
Legitimacy of National High Courts, 92
am. pol. sCi. Rev. 343, 344, 351356 (1998) ([O]nly prolonged
dissatisfaction would erode levels of diffuse support.).
36 See, e.g., Robert H. Durr, Andrew D. Martin, & Christina
Wolbrecht, Ideological Divergence and Public Support for the
Supreme Court, 44 am. J. pol. sCi. 768, 768769 (2000); Jeffery J.
Mondak & Shannon I. Smithey, Dynamics of Public Support for the
Supreme Court, 57(4) J. pol. 1114, 1116 (1997).
37 See Caldeira & Gibson, supra note 31, at 637; Gibson,
Caldeira, & Spence, supra note 30, at 354357, 361, 363364
(public confidence picks up two types of variance: short-term
satisfaction with the per-formance of the institution and long-term
attachments to the institution itself. We tend to see the former
source of variance as dominant but admit that the evidence is
ambiguous.).
38 See Gibson, Caldeira, & Spence, supra note 30, at 355,
359 ([S]pecific policy disagreements with the Court do not directly
erode overall satisfaction with the institutions performance.);
Mondak & Smithey, supra note 36, at 11241125 (Public support
for the Supreme Court tends to be both high and stableaggregate
traits that seemingly reveal an institution largely insulated from
short-term shifts in public preferences.).
39 Mondak & Smithey, supra note 36, at 1116 n.2.40 See,
e.g., Gibson, Caldeira & Spence, supra note 30, at 355 tbl.1
(providing data on Confidence in the
Leaders of the U.S. Supreme Court from 1973 to 2000).41 Mondak
& Smithey, supra note 36, at 11181119 (tracking public support
for the Court from 1972 to
1994, and showing that it consistently exceeds support for the
executive branch and Congress); Gibson, Caldeira, & Spence,
supra note 30, at 355 (reporting data from 1973 until 2000 that
shows public confi-dence in the Court is generally stable).
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20 ICON 11 (2013), 1333
been the most favored institution of government.42 Data also
show that at least since 1987, the Court has enjoyed significant
bedrock of diffuse support.43 Caldeira and Gibson summarize several
of their studies by noting that the Supreme Court has enjoyed a
fairly substantial reservoir of goodwill among the American
people.44
These results, arrived at using different metrics, testify to
one point that is crucial for our argument: while the Court acts,
at times, in a CM manner, it enjoys public loyalty, not just
approval. Though the majority of the public may at times disagree
with Courts decisions, these CM decisions do not normally undermine
the publics basic commit-ment to support the Court.45 Thus, we
acknowledge that the CM difficulty in its literal sense does exist.
Notable examples in which the Court maintained a CM stand even
after learning of public disapproval include its flag-burning
decisions46 and its school prayer decisions.47 Yet, while theorists
who dissolve the CM difficulty demonstrate that, as a matter of
fact, the Courts decisions remain within the publics zone of
acquiescence,48 we argue that the public and its representatives
accept and support the Court as an insti-tution that possesses a CM
authority. As elaborated below, we further argue that this position
has a normative consequence: it solves the CM difficulty in its
literal sense.
The position that the Court has the final say in questions of
constitutional meaning (a position known as judicial supremacy49)
is accepted, if not assumed, by politicians and the general
public.50 Yet, at times, institutional actors still resist
42 John R. hibbing & elizabeTh Theiss-moRse, sTealTh
demoCRaCy: ameRiCans belieFs abouT hoW goveRnmenT should WoRk 99100
(2002); see also maRshall (1989), supra note 20, at 138141 ([T]he
Court has consistently won more approval than Congress or the
executive branch (at least since the 1970s).); FRiedman, supra note
21, 15 (The justices regularly outpoll the Congress and often even
the President in terms of public support or confidence.), and
372.
43 Gibson, supra note 32, at 840841 (summarizing six surveys
between 1987 and 2008).44 James l. gibson & gRegoRy a.
CaldeiRa, CiTizen, CouRTs and ConFiRmaTions 38, 42 (2009); see also
James L. Gibson
& Gregory A. Caldeira, Have Segal and Spaeth Damaged the
Legitimacy of the U.S. Supreme Court?, 4 (July 4, 2009)
(unpublished manuscript, available at http://papers.ssrn.com/
abstract=1436426) (The U.S. Supreme Court is a deeply legitimate
institution.); Gibson, Caldeira, & Spence, supra note 30, at
360 (loyalty toward the Court is reasonably strong and widespread.)
and 364.
45 Gibson, supra note 32, at 837843.46 Texas v. Johnson, 491
U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990).47
Engel v. Vitale, 370 U.S. 421 (1962); Sch. Dist. of Abington Twp.
v. Schempp, 374 U.S. 203 (1963); see
also Lawrence Baum & Neal Devins, Why the Supreme Court
Cares About Elites, Not the American Public, 98 geo. l.J. 1515,
15561560 (2010) (surveying the divergence between public opinion
and the Courts decisions); Frederick Schauer, Judicial Supremacy
and the Modest Constitution, 92 Cal. l. Rev. 1045, 1046, 10581059
(2004) (arguing that in issues such as school prayer, flag burning,
child pornography, the regulation of indecency, and defendants
rights, the Court acted in a CM manner in the literal sense).
48 See, e.g., FRiedman, supra note 21, at 373, 379; Klarman,
supra note 24, at 1618.49 keiTh e. WhiTTingTon, poliTiCal
FoundaTion oF JudiCial supRemaCy 58 (2007) (distinguishing between
judi-
cial review and judicial supremacy).50 See, e.g., Larry D.
Kramer, The Supreme Court, 2000 Term: Foreword: We, the Court, 115
haRv. l. Rev. 4,
67 (2001) (as a descriptive matter, judges, lawyers,
politicians, and the general public today accept the principle of
judicial supremacyindeed, they assume it as a matter of course.);
Gibson, supra note 32, at 832 (reporting that in three surveys
conducted in 2001, 2005, and 2008, 60.7%, 56.8%, and 53.8% of
respondents, respectively, were aware that the Court has the last
say when there is a conflict over the meaning of the Constitution);
WhiTTingTon, supra note 49, at 5, 15, 23, 27 (despite occasional
voices of dissent, crucial government officials have generally
supported the judiciary and recognized its claim to being the
ultimate interpreter of constitutional meaning.), and 28490
(demonstrating that only on relatively rare historical
circumstances do presidents challenge judicial supremacy).
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this position.51 However, it is hard to find resistance to the
CM authority of judicial review, at least in recent decades, even
among institutional actors who are directly constrained by the
Courts decisions.52 As Richard Pildes recently pointed out, the
modern Congress typically treats the Court as the exclusive
authority over constitu-tional issues.53
Indeed, apart from several contenders in the legal academia,54
the Courts author-ity to review the constitutionality of
legislation is almost consensual.55 One indicator that led Caldeira
and Gibson to conclude that the Court enjoys a high level of
dif-fuse support came from a 1987 survey, in which a relatively
high level of respondents expressed disapproval of the following
assertion: the power of the Supreme Court to declare acts of
Congress unconstitutional should be eliminated.56 Neal Devins
asserts that citizens and lawmakers look especially to the Court to
check Congress. For this reason, he further explains, Court
decisions striking down federal statutes look more like exercises
of delegated authority than like countermajoritarian judicial
review.57 Barry Friedman summarizes that by and large, for now, the
people are simply content with the system of judicial review.58
51 See, e.g., Edwin Meese III, The Law of the Constitution, 61
Tulane l. Rev. 979, 983 (1987) (asserting that Supreme Court
rulings on issues of constitutionality do not establish a supreme
law of the land that is binding on all persons and parts of
government henceforth and forevermore).
52 See, e.g., Pildes, supra note 25, at 133 (It has been many
generations since Congress retaliated against the Court through
measures such as eliminating the Courts Term, expanding or shirking
the size of the Court, impeaching a justice, or stripping the Court
of jurisdiction over major areas.); Neal Devins, The Majoritarian
Rehnquist Court? 67 laW & ConTemp. pRobs. 63, 6970 (2004)
(titling a subsection: Members of Congress Support Independent,
Scrutinizing Judicial Review of Federal Statues, and adding that
todays Congress rarely casts doubt on either the correctness of the
Courts ruling or, more fundament-ally, the Courts power to
authoritatively interpret the Constitution.); Larry Alexander &
Lawrence B. Solum, Popular? Constitutionalism?, 118 haRv. l. Rev.
1594, 1638 (2005) (book review) (The kind of constitutional work
the Supreme Court does Term after Term, in case after case, is now
overwhelmingly accepted by all of the branches of government and
the citizenry at large.).
53 Pildes, supra note 25, at 147. See also Mark A. Graber, The
Countermajoritarian Difficulty: From Courts to Congress to
Constitutional Order, 4 annu. Rev. laW soC. sCi. 361, 364 (2008)
(surveying several other indi-cation of elected representatives
support of the Court and its judicial review authority).
54 See, e.g., maRk TushneT, Taking The ConsTiTuTion aWay FRom
The CouRTs 154176 (1999).55 See, e.g., laRRy d. kRameR, The people
Themselves: populaR ConsTiTuTionalism and JudiCial RevieW 227
(2004)
(The acceptance of judicial authority is most apparent . . . in
the all-but-complete disappearance of pub-lic challenges to the
Justices supremacy over constitutional law.); Neal Devins, Should
the Supreme Court Fear Congress?, 90 minn. l. Rev. 1337, 1359
(2006) ([E]ven though some Supreme Court decisions trig-ger a
backlash by those who disagree with the Courts rulings, the
American people nonetheless support judicial review and an
independent judiciary.).
56 Caldeira & Gibson, supra note 31, at 11281129.57 Devins,
supra note 52, at 65; see also id. 73, 8081.58 FRiedman, supra note
21, at 371; see also Jesse H. ChopeR, JudiCial RevieW and naTional
poliTiCal pRoCess 48
(1980) (judicial review has been institutionally adopted by
continuing consensus of American society as an integral rule of the
system.); FaRbeR & sheRRy, supra note 4, at 30 (Most people
seem to approve the Supreme Court as an institution and approve of
its constitutional role.); Kevin L. Yingling, Justifying the
Judiciary: A Majoritarian Response to the Countermajoritarian
Problem, 15 J.l. & pol. 81, 9496 (1999) (Significant evidence
indicates that people prefer that the courts decide such
constitutional disputes regardless of the substantive outcome. . .
. [E]ven though the public does not always support the out-comes,
they do support the entity which produces those outcomes. . .
.).
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22 ICON 11 (2013), 1333
To summarize this section, despite some methodological and
terminological dif-ferences among social scientists, there is a
wide consensus among scholars that the American public and their
representatives persistently accept and support the Courts CM
institutional function.
3.2. Judicial review as a mechanism
The Constitution anchors a substantive thesis regarding the
course that American society should follow. However, there is
disagreement concerning the content of this thesis. As explained
above, this dispute finds expression in the different
justifications proposed for judicial review.59 In addition to the
dispute regarding the substantive thesis directing the
constitutional endeavor, a second kind of debate ensues over the
day-to-day implications embedded in a particular substantive
thesis. We can all agree that the Constitution anchors a liberal
democracy that takes rights seriously,60 yet argue whether such a
commitment implies that the government may require us to purchase
health-care insurance. A third kind of debate could concern the
question of what kind of review mechanism over legislation (if any)
is required to ensure that American society continues in the right
constitutional course.61
Choosing the right mechanism raises two issues. The first of
these concerns the best means to achieve the desired result, the
best way to ensure that the people are bound to the substantive
goal. For example, one may claim that thin, procedural demo-cracy
is the vision anchored in the Constitution.62 According to this
line of thought, protecting basic democratic procedures may indeed
justify some kind of legislation-review mechanism. As a matter of
choosing the right mechanism, one may claim that it is better to
entrust the review power in the hands of a second legislative
chamber. Such a review mechanism will not force standards of legal
logic on political peddling and logrolling, which are essential to
the legislative process, and which do not hin-der democratic
procedure. As a matter of choosing the most efficient mechanism for
achieving the desired substantive goal, so the claim goes, judicial
review will just be comparatively less efficient.
The second issue is the normative legitimacy of different
mechanisms. The CM dif-ficulty is an example for a normative
legitimacy problem of one such mechanism, i.e., judicial
review.
Scholars who justify judicial review of legislation attempt to
show that a world with judicial review is morally superior to a
world without it. They argue that a review mechanism is
instrumental in fostering certain valuable outcomes, such as the
pro-tection of disadvantaged groups, the preservation of democratic
procedures, or the assurance of certain basic moral values.
Moreover, these scholars contend that the best review mechanism for
achieving their constitutional goal is judicial since the
59 See supra section 2.1.60 Ronald dWoRkin, FReedoms laW 1617,
7278, 212216 (1996).61 Cf. Alexander & Solum, supra note 52, at
1630 (distinguishing between constitutionalism, which is not
problematic in terms of the CM difficulty, and the judicial
mechanism that enforces it, which is).62 See, e.g., ely, supra note
4, at 87101.
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Solving the countermajoritarian difficulty 23
justices hold certain expertise or competence that allows them
to ensure the fulfill-ment of the desired goal.
While no one doubts that the justices hold legal expertise,63
the exposure of the indeterminacy of legal norms, especially those
at the focus of Supreme Court cases, undermined significantly the
claim that legal expertise awards the Court with a spe-cial ability
to discover the one correct answer in constitutional cases.64 In
regards to questions of political morality that are the focus of
Supreme Court cases, many scholars deny that the Court holds any
relevant superior expertise or competence in comparison to other
institutions.65 The CM difficulty is thus not merely a problem of
unaccountable justices deciding contrary to majority will, but a
problem of justices doing so without possessing any relevant
superior ability or knowledge.66
But even if the justices have the relevant expertise that
ensures that they will arrive at the correct legal and moral
answer, it does not necessarily confer judicial review with
normative legitimacy. Expertise, legal, moral or in policy issues,
is not enough to normatively legitimate authority. Authority does
not simply follow from expertise. In other words, [y]ou might be
correct, but what makes you boss?67 This expert/boss fallacy occurs
when one thinks that being an expert is sufficient basis for
legiti-mating authority.68 There is no point in counting noses
among the public regarding questions of expertise,69 yet the
experts authority cannot be driven solely from her superior
knowledge. [T]he doctors right to make decisions and perform
procedures on us, David Estlund further explains, comes mainly from
our consent, not from the doctors expertise.70
3.3. Solving the CM difficulty and legitimating the Courts CM
authority
The CM difficulty is solved since the public and its
representatives accept the Courts judicial review authority and
award the Court their enduring support.71 While this
63 See, e.g., David S. Law, A Theory of Judicial Power and
Judicial Review, 97 geo. L.J. 723, 748, 752 (2009).64 See, e.g., Or
Bassok, The Sociological-Legitimacy Difficulty, 26 J.l. &
poliTiCs 239, 247251 (2011).65 See, e.g., adRian veRmeule, Judging
undeR unCeRTainTy: an insTiTuTional TheoRy oF legal inTeRpReTaTion
(2006).66 See biCkel, supra note 12, at 80 (if behind all judicial
dialectic there was personal preference and personal
power and nothing else then this is a reality on which we cannot
allow the edifice of judicial review to be based, for if that is
all judges do, then their authority over us is totally intolerable
and totally irreconcil-able with the theory and practice of
political democracy.).
67 See esTlund, supra note 16, at 3. See also Thomas ChRisTiano,
The ConsTiTuTion oF equaliTy 119121, 241242 (2008) (arguing that in
political decisions, expertise is not enough for legitimating
authority). Contra Waldron, supra note 9, at 49 (claiming that
judicial review might have been acceptable if there were a
philosophical elite who could be trusted to work out once and for
all what rights we have and how they are to be balanced against
other considerations.).
68 esTlund, supra note 16, at 22, 40.69 Hanna Fenichel Pitkin,
Introduction, in RepResenTaTion 1, 20 (Hanna Fenichel Pitkin ed.,
1969).70 esTlund, supra note 16, at 3. See also id. at 119
(Roughly, no authority without consent. Emphasis in the
original.).71 See, e.g., FRiedman, supra note 21, at 15 ([T]he
more salient Supreme Court decisions generally meet with
great public approval. And even when they do not, the public
supports the Courts right to decide cases nonetheless.) and 379;
Yingling, supra note 58, at 9496 (Not only does the public support
the institution of the Supreme Court, but they also support its
ability to invalidate legislation using judicial review.).
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solution relies on the Courts democratic credentials, it does
not undermine the case in favor of CM judicial review since the
Court does not need to mirror public opin-ion.72 Even when the
public disagrees with a certain decision making it CM, the more dur
able public support for the Court and its judicial review authority
remains firm.73 Thus, we acknowledge that judicial review at times
does counter public opinion and does so over relatively long
periods.74 Yet, we argue that the public and its represen-tatives
want a Court that is willing to exercise its judicial review
authority in a CM fashion. The Court is the boss in issues of
judicial review since the public and its representatives accepted
it as such.
Against the claim that the Court is a deviant institution since
it counters the major-ity will, we show that the Court is a
majoritarian institution since the public and its representatives
accept the CM aspect of its work and award the Court their
endur-ing support. Some Courts decisions lack specific support, yet
the Courts sociological legitimacy as an institution counters the
claim that the Court does not correspond to the majoritarian aspect
of democracy. The Courts judicial review authority is thus shielded
from the claim that it is CM in the literal sense not because it
does not decide cases in CM fashion, but because the public and its
representatives accept this author-ity. The majoritarianism aspect
of the difficulty is solved, rather than dissolved, since while the
Court may act in a CM fashion, it is not a CM institution.
Judicial review is relatively superior to other mechanisms for
reviewing legislation not because justices possess some special
knowledge or because they enjoy an outsider per-spective. In the
American context, the Courts special trait is its sociological
legitimacy. The Courts unique ability to operate a mechanism to
review legislation is based on the contingent fact that of the
three branches it is currently, by far, the most accepted
insti-tution to hold a CM authority.75 In other words, the Congress
or the President may be better equipped in terms of expertise than
the Court to make the correct constitutional decision in a concrete
case.76 However, their ability to make the correct decision is
lim-ited in scenarios in which the public hold a contradictory
opinion. Indeed, many schol-ars lament over representatives
permanent campaign, i.e., their constant attempt
72 Cf. Jeremy Waldron, The Core of the Case Against Judicial
Review, 115 yale l.J. 1346, 1394 (2006) ([T]o the extent that we
accept judges because of their democratic credentials, we undermine
the affirmative case that is made in favor of judicial review as a
distinctively valuable form of political decision-making.).
73 See Gibson, supra note 32, at 840 (Big majorities of the
American people do not want to do away with the Supreme Court;
roughly a majority wants to protect the Courts jurisdiction; and
sizeable majorities trust the Court.); id. at 842 (even when the
Court makes unpopular decisions its legitimacy is not at
risk.).
74 See Pildes, supra note 25, at 116117 (claiming that scholars
who present the Court as a majoritarian institution paint a
dangerously misleading picture of how constrained the Court
actually is); see also supra text accompanying notes 4647.
75 See Law, supra note 63, at 791 (In [the US] and elsewhere,
courts known for striking down supposedly majoritarian legislation
have nevertheless enjoyed high levels of public support that put
other govern-ment institutions to shame.); see also supra the
discussion in section 3.1(a).
76 See Frank B. Cross, Institutions and Enforcement of the Bill
of Rights, 85 CoRnell l. Rev. 1529, 15391550 (2000) (Congress can
ensure that it receives better legal advice than can the Court,
which must suf-fer whichever advocates appear before it. The
Executive Branch may have the best case of all for legal
quality.).
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Solving the countermajoritarian difficulty 25
to correspond to the latest public opinion poll.77 In comparison
to the Court, these branches are not sociologically legitimated to
act in a CM fashion nor are they inclined to act in such fashion.
The Courts sociological legitimacy as a CM institution rather than
any kind of expertise grants it with normative legitimacy to
function in a manner in which other institutions cannot. Based on
empirical evidence, some scholars argue that the Courts
sociological legitimacy is still at least partly built on a public
belief that the Court holds expertise.78 Yet, it is important to
emphasize that according to our solu-tion, the Courts normative
legitimacy is based on public acceptance of the Courts CM
authority, rather than the acceptance of the Courts expertise by
itself.
Our solution thus awards normative legitimating meaning to
sociological legiti-macy.79 In a reality fraught with disagreements
over substantive moral issues, the American public and its
representatives have chosen and re-chosen judicial review as the
procedure for settling their constitutional disagreements thus
endowing it with normative legitimacy.80 Whether this happened
following President Roosevelts failure to pack the Court,81 or only
as a result of the success of Brown,82 it is clear that in recent
decades, the Courts CM authority has been, for all practical
matters, undisputed.
The people, of course, may change their mind at some point. The
publics support for the Court, even its most durable diffuse
support, may decrease to a point that our solution is no longer
viable.83 Such a development is not expected to occur overnight,
since even strong resentment towards a series of specific decisions
does not immedi-ately influence the level of the diffuse support
for the CM institution. There may also be various shifts in
judicial behavior before such a crucial crisis takes place.84 But
since
77 See, e.g., david m. RiCCi, good CiTizenship in ameRiCa 207
(2004); Jeff Manza, Fay Lomax Cook, & Benjamin I. Page,
Introduction, in navigaTing publiC opinion 3, 4 (Jeff Manza, Fay
Lomax Cook, & Benjamin I. Page eds., 2002) (surveying
commentators that criticize the development of poll driven
leadership).
78 gibson & CaldeiRa, supra note 44, at 8, 1516, 6061, 70,
8081, and 119.79 See A. John simmons, JusTiFiCaTion and legiTimaCy
122, 129133 (2001).80 See FRiedman, supra note 21, at 16 (If
anything should be evident by the conclusion, it is that the
Supreme Court exercises the power it has precisely because that
is the will of the people.); cf. Waldron, supra note 72, at
13711373 ([E]ven though the members of the society we are imagining
disagree about rights, they need to share a theory of legitimacy
for the decision-procedure that is to settle their disagreements.).
While Waldron wants exactly such a societal agreement on a
decision-procedure, he would probably view the publics decision to
approve the Courts judicial review power with disdain.
81 See, e.g., FRiedman, supra note 21, at 196 (The true
significance of 1937 . . . was plain for all to see. The American
people signaled their acceptance of judicial review as the proper
way to alter the meaning of the Constitution, but only so long as
the justices decisions remained within the mainstream of poplar
understanding.).
82 See, e.g., WhiTTingTon, supra note 49, at 23, 25 (claiming
that judicial supremacy has dominated American constitutional law
since the Warren Court); kRameR, supra note 55, at 220221 (But here
is the striking thing: after Cooper v. Aaron, the idea of judicial
supremacy seemed gradually, at long last, to find wide public
acceptance [B]y the 1980s acceptance of judicial supremacy seemed
to become the norm.).
83 See, e.g., Barry Friedman, The Politics of Judicial Review,
84 Tex. l. Rev. 257, 328 (2005) (negative infor-mation, especially
a steady flow of it, can decrease diffuse support . . .).
84 See infra the discussion in section 4.5.
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26 ICON 11 (2013), 1333
we argue that the normative legitimacy of the institution of
judicial review rests (at least to some extent85) on public
support, the loss of public support must affect this legitimacy.
Otherwise, it runs the risk of referring to nothing more than some
vague notion of acquiescence.86
Thus, the Courts judicial review authority is legitimated by
public acceptance, not by the morality of the Courts substantive
vision as proven at the professors writing table. Normatively
legitimating the mechanism of judicial review based on public
acceptance does not mean awarding normative legitimacy to the
substantive consti-tutional vision that stands at the basis for the
Courts decision to strike down a specific statute. The Courts
substantive interpretation can be rejected by the public on several
occasions, and yet the Court still has enduring public support, and
its judicial review authority is accepted in general. The mechanism
is accepted; the substantive decision is debated. Hence, while the
Court does not necessarily represent values that the public
supports, the mechanism of judicial review is reconciled with a
majoritarian system.
The public and its representatives have accepted the Courts
authority to defy their first-order preferences in the name of
constitutional second-order constraints. Those who are bound have
chosen their constraining mechanism and have supported its
operation. Theirs is not merely a one time pre-commitment or a
fictive thought experiment.
4. Solving the CM difficulty: critique and rejoinder
4.1. The reliability of public opinion polls
Public opinion polls are notoriously susceptible to wording and
framing effects, and to other forms of manipulations.87 They can
create a misleading illusion that a definite public opinion exists
where there is, in fact, widespread public ignorance and poorly
informed opinions.88 Some scholars view public opinion as an
artifact constructed for the purpose of political legitimation of
the elites hegemony.89
Be that as it may, the CM difficulty in its literal sense exists
only if we take opinion polls as reflective of public opinion.
Indeed, according to this difficulty, the Court is CM whenever it
counters the majority will as reflected in the results of public
opinion
85 We should stress again that the solution presented is
restricted to solving the literal CM difficulty. We leave the
effect of this solution on the traditional CM difficulty, as well
as on other normative difficulties, for future investigation.
86 Cf. Pildes, supra note 25, at 148 (arguing that the mere
contention that the public supports the legiti-macy of judicial
review despite CM decisions turns the majoritarian thesis into a
theory of Burkean con-sent or acquiescence in the status quo . .
.); Clifton McCleskey, Judicial Review in a Democracy: A Dissenting
Opinion, 3 hou. l. Rev. 354, 362 (1966) (Even if there has been
acquiescence, this does not necessarily prove the democratic
character of judicial review; it may simply prove our attachment to
constitutional principles, even undemocratic ones.); peRRy, supra
note 5, at 126.
87 See, e.g., geoRge F. bishop, The illusion oF publiC opinion
817, 5889, 138148 (2005).88 See, e.g., James s. Fishkin, The voiCe
oF The people 8084 (1995); bishop, supra note 87, at xvi.89 Pierre
Bourdieu, Public Opinion Does Not Exist, in soCiology in quesTion
149 (Richard Nice trans., 1993).
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Solving the countermajoritarian difficulty 27
polls. In other words, our solution to the CM difficulty relies
in part on the same instru-ment on which the difficulty itself is
built upon. If the instrument is flawed, both the difficulty and
the solution are refuted.
4.2. Justice cannot be measured in terms of public support
Our solution deals well with a scenario in which judicial review
over legislation is mor-ally justified (in terms unrelated to
public attitudes), and in which the public opposes the specific
decision while awarding the Court sociological legitimacy. In such
a sce-nario, our solution relies on the durable character of the
Courts sociological legiti-macy. The Court can hand down unpopular
yet morally justified decisions in several cases without harming
its sociological legitimacy. The Court does not capitulate to
public opinion and yet its CM difficulty, or at least the
majoritarian aspect of the diffi-culty, is solved. In this manner
the Court fulfills the Constitutions purpose of placing certain
issues beyond the reach of public opinion by relying on the publics
durable support.90
Our solution does raise serious difficulties in two other
scenarios. First, when the Court has sociological legitimacy yet
acts immorally. Second, when the Court lacks sociological
legitimacy yet acts morally. In the first scenario, our solution
solves the CM difficulty for an immoral Court; our argument awards
normative legitimacy to an immoral court. In the second scenario,
our solution does not apply to a moral Court; our argument fails to
award normative legitimacy to a moral court.
For the first scenario consider the following example: a
legislator in an imaginary country enacts a law forbidding the
detention of citizens without evidence of wrong-doing. A court that
has sociological legitimacy, strikes down this law. The court
jus-tifies its decision based on terrorist threats. If the public
opposes detention without evidence and thus supports the law that
prohibits it, in striking down the said statute this court acts in
a CM fashion. Yet this court has sociological legitimacy and thus
our solution applies!91
In the second scenario, a court deprived of sociological
legitimacy, acts morally by striking down anti-miscegenation laws.
We hope that the public will endow a decision that is moral (and
legal) with specific support, but this, of course, will not always
be the case. Thus, a moral decision may yet be CM. In such
situation, if the people do not endow the court with sociological
legitimacy, our solution will not apply. Thus,
90 See, e.g., West Virginia State Board of Education v.
Barnette, 319 U.S. 624, 638 (1943) (The very pur-pose of a Bill of
Rights was to withdraw certain subjects from the vicissitudes of
political controversy, to place them beyond the reach of majorities
and officials and to establish them as legal principles to be
applied by the courts.).
91 Cf. Korematsu v. U.S., 323 U.S. 214 (1944) (upholding of the
internment of American citizens of Japanese decent during World
War). Korematsu is a clear example of a decision that was highly
immoral yet popu-lar. See Robert H. Jackson, Wartime Security and
Liberty Under Law, 1 buFF. l. Rev. 103, 115 (1951) (noting that in
Korematsu, [o]ne view, certainly the popular view at the time . . .
held exclusion and detention of citizens of Japanese ancestry
constitutionally valid.); FRiedman, supra note 21, at 372373 (the
cur-rents of public opinion against the interned Japanese came to
be very strong.).
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we cannot solve the CM difficulty for a court that acts morally
but lacks sociological legitimacy.92
Our solution sets sociological legitimacy as the sole criterion
for the normative legit-imacy of judicial review. It is focused on
peoples attitudes toward the Court rather than on the morality of
the Courts decisions.93 Thus, even if sociological legitimacy
endows an institution with some degree of normative legitimacy, its
actions can be so atrocious that it lacks any normative legitimacy
in terms of the classical justifica-tions for judicial review. In
other words, the Courts normative legitimacy awarded on the basis
of public enduring support of the Court does not ensure that the
Courts decisions will be just according to the various
justifications to the Courts power.94 Thus, as other attempts to
confront the CM difficulty, our solution is suited only for
reasonably just societiessuch as the current American societyin
which there is some minimal consensus, both in the public and among
the justices, regarding the need to protect fundamental human
rights.95
4.3. Happy slaves96
Since the solution we offer is not based on hypothetical consent
given by fictive images that hold all the right normative reasons,
the publics actual enduring support may be given for all the wrong
reasons. Thus, the publics enduring support for the Court has a
normative legitimating meaning even if that support is based on a
desire to avoid making decisions by clinging on the justices
assertions. In this scenario, our solu-tion endows the support of
happy slaves with normative meaning. Indeed, while the solution we
offer depends on public attitudes towards the Court, in the end it
may in fact legitimize a situation of less self-government.
Such a scenario is not far-fetched. While the actual reasons for
the publics support for the Court and for judicial review are
beyond the scope of this article, it would be extremely
presumptuous to assume that they are grounded on some grand
under-standing of the concept of constitutionalism or any other
normative theory. For example, the Courts performance in Bush v.
Gore can hardly be considered as its high point in terms of
legality.97 Yet, social scientists discovered that the Court
enjoyed a
92 Cf. Am. Fedn of Labor v. Am. Sash & Door Co., 335 U.S.
538, 555556 (1949) (Frankfurter, J., concur-ring) (A Court is not
saved from being oligarchic because it professes to act in the
service of humane ends.).
93 Cf. simmons, supra note 79, at 133 (criticizing attitudinal
accounts of political legitimacy on making their judgments too much
about publics attitudes and too little about the acts in
questions).
94 See paul W. kahn, poliTiCal Theology: FouR neW ChapTeRs on
The ConCepT oF soveReignTy 131 (2011) (Legitimacy, however, is
neither a necessary condition of justice nor a substitute for
justice. But cor-respondingly, justice is not a substitute for
legitimacy.).
95 Cf. Waldron, supra note 72, at 13601369 (explaining that the
core of the case against judicial review is designed to hold only
in the gray sheds of a reasonably democratic society).
96 Cf. don heRzog, happy slaves (1989) (criticizing consent
theories).97 See, e.g., Cass R. Sunstein, Lawless Order and Hot
Cases, in a badly FlaWed eleCTion 75, 77, 103 (Ronald
Dworkin ed., 2002) (claiming that the decision produced order
without law, and that legal materials did not support the outcome
in Bush v. Gore, especially on the question of remedy, and hence
the Court acted in a lawless fashion.).
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slight upward spike in its legitimacy98 as a result of this
decision. Frank Michelman suggests that this rise in support of the
Court may demonstrate that what Americans want above all else of
the Supreme Court is assurance that someone is there to bring the
country to heel when chaos looms or politics threaten to get out of
hand.99
Indeed, the people may just get used to the responsible adult
making for them all the important political decisions or fall under
the spell of her mesmerizing cha-risma.100 This is the problem with
a self-constraining solution that is based on submis-sion to a
master rather than on creating a lag of time or a second chance for
the people themselves to reconsider their decision to stray from
their self-commitment.101
Moreover, the situation is aggravated by the danger of the
creation of a self-perpetu-ating cycle in terms of impoverishing
the peoples political-decision abilities. As James Bradley Thayer
already warned, the rise of judicial review would inevitably bring
the people (or at least their representatives) to leave
constitutional issues to the Court and avoid taking seriously their
obligation to uphold the Constitution. Over time, the people and
their representatives lose their constitutional sensitivity,
ensuring that they will not be able to reclaim their role as
deciders.102
Yet our solution still offers a way out: at some point in time
the people may tear their judicial constraints and decide for
themselves. Moreover, we can even require that in order to
legitimize the Courts CM authority, public acceptance of the Court
would have to comply with certain conditions of adequacy, such as
being adequately informed.103
4.4. The insult in the denial of the right to equal
participation in decision-making
The CM difficulty captures the claim that judicial review shifts
political decisions from the people and their representative
institutions to nine justices and thus infringes the citizens right
to equal democratic participation in political decision-making.104
Scholars who confront the difficulty by justifying the Courts CM
authority offer com-pensation in terms of protecting other values.
However, some scholars claim that
98 Gibson, supra note 32, at 842.99 Frank I. Michelman,
Machiavelli in Robes? The Court in the Election in The longesT
nighT 256, 265267
(Arthur J. Jacobson & Michel Rosenfeld eds., 2002).100 Cf.
JeRome FRank, laW and The modeRn mind 5 (2009) (1930) (an infantile
longing to find a father-substi-
tute in law.); hibbing & Theiss-moRse, supra note 42, at 86
(The people are surprisingly smitten with the notion of elite
experts making choices . . .).
101 Cf. esTlund, supra note 16, at 122 (noting that there are
consent theories that imply that a person could become a salve,
under the complete authority of another person, by consenting to
it, so long as this genu-inely reflects his or her will.).
102 James Bradley Thayer, The Origin and Scope of the American
Doctrine of Constitutional Law, in legal essays 39 (1908).
103 See esTlund, supra note 16, at 117, 121123 (discussing
different requirements of adequacy).104 See, e.g., Thomas
ChRisTiano, The Rule oF The many 3, 15 (1996) (When decisions must
be made that
affect the interests of all, then each has a right to an equal
say in making these decisions.); Waldron, supra note 9, at 20, 36
(self-government and participation in politics by ordinary men and
women, on equal terms, is itself a matter of fundamental
right.).
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30 ICON 11 (2013), 1333
there is a certain dignity in participation, and an element of
insult and dishonor in exclusion, that transcends issues of
outcome.105
Our solution tries to narrow this insult. We offer to honor the
peoples voice on the question of whether the justices should have
the power of judicial review.106 While the public cannot directly
participate in the Courts decision-making, according to our
solution, public opinion has an ongoing influence on the normative
legitimacy of the decision-maker. One should bear in mind that the
people have voice with regards to representative institutions also
mainly in terms of electing the decider rather than in direct
participation in decision-making.107
4.5. Diffuse support in the eye of the judiciary
Though public support may be important for legitimating the
Courts CM author-ity, it does not follow that our solutions
practical recommendation for justices is to adopt public opinion as
their guiding star in adjudicating cases. Justices and
com-mentators remind us time and again that the justices do not
conduct public opinion polls, and that constitutional questions are
not settled even by a consensus of present public opinion.108 In
theory at least, a court can stick to a certain method of
consti-tutional decision-making (such as, for example, originalism
or rights-based theories) without any consideration of the publics
support for the Court.109
Yet a complete acoustic separation110 between the normative
impact of the Courts enduring public support and the justices
decision-making practices seems unrealistic.111 Some of the
dissolution theorists point exactly on the influence public opinion
has on the justices,112 and there is ample anecdotal evidence that
the justices
105 Id. at 2728, 3941 (it is an insult to say that the issues
are too important or perhaps too formalistic for [the people]
(rather than the judges) to decide ), 46, and 51.
106 See Tom R. Tyler, Psychological Perspectives on Legitimacy
and Legitimation, 57 annu. Rev. psyChol. 375, 392 (2006) (a focus
on [sociological] legitimacy empowers the members of organizations
and societies.).
107 See Slavko Splichal, Introduction: Public Opinion and
Democracy Today, in publiC opinion and demoCRaCy vox populivox dei?
1, 3 (Slavko Splichal ed., 2001) (Representative democracy excludes
the people from direct influence on national power.).
108 Muller v. Oregon, 208 U.S. 412, 420 (1908) (constitutional
questions are not settled by even a consensus of present public
opinion, since a written constitution is designed to place[. . .]
in unchanging form limi-tations upon legislative action . . . );
see also, e.g., James G. Wilson, The Role of Public Opinion in
Constitutional Interpretation, 1993 byu l. Rev. 1037, 1120 (1993)
(many Justices have separated the judicial domain, excluding public
opinion, from the political domain, where public opinion reigns
supreme.).
109 See, e.g., Cass R. sunsTein, a ConsTiTuTion oF many minds
127133 (2009) (analyzing theories that resist giving weight to
public opinion).
110 Cf. Meir Dan-Cohen, Decision Rules and Conduct Rules: On
Acoustic Separation in Criminal Law, 97 haRv. l. Rev. 625 (1984)
(distinguishing between rules addressed to the general public and
rules addressed to officials).
111 Cf. Michael L. Wells, Sociological Legitimacy in Supreme
Court Opinions, 64 Wash. & lee l. Rev. 1011, 10501053 (2007)
(arguing for the combination of sociological and legal legitimacy
in judicial decision-making).
112 See, e.g., FRiedman, supra note 21, at 374 (summarizing
several recent studies and pleading at long last to move past the
question of whether the justices are influenced by popular opinion,
a question whose only conceivable answer is yes . . .).
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Solving the countermajoritarian difficulty 31
are paying attention to the publics confidence in the Court.113
Hence, such an influ-ence exists with life tenured justices, who
supposedly have no normative incentive to follow public opinion,
and whose ethos of independence even provides them with a
counter-incentive.114 Surely, if public support of the Court
becomes an essential part of a salient solution to the Courts most
prominent normative difficulty, it would be unrealistic to assume
that justices would not become even more interested in their
ratings in polls. Subsequently, the discussion of the solution to
the CM difficulty must take into account the influence such a
discourse of legitimization would have on judicial decision-making
and judicial behavior.
One obvious danger is that the Courts awareness of the
importance of its enduring public support would encourage the Court
to engage in all sorts of strategic maneu-vers. Even if it does not
follow public opinion in each and every case in an attempt to
preserve its support, the Court may prefer to remain inside a
safety zone of social consensus in order to preserve its reservoir
of public confidence.115 Since the size of the Courts reservoir of
support is not constant, and is at least somewhat potentially
influenced by the publics reaction to particular decisions, the
Court may choose to refrain from particularly unpopular decisions,
or to make particularly popular deci-sions, or both. Should this
happen, arguably, our solution may lead, at the bottom line, to
populist judicial behavior.
A populist stance by the Court does not only run against the
very purpose of judicial review as a mechanism to constrain the
majority in the name of funda-mental principles,116 it also
corrupts the logic of the legal language. If the Court decides
cases according to the logic of public support instead of legal
logic, val-ues such as consistency, coherency and predictability
will be sacrificed, in certain cases, in pursuit of public
satisfaction.117 The legal language thus becomes a prod-uct of
justices estimating how popular opinion is going to develop rather
than a principled regime.118
113 See, e.g., Devins, supra note 52, at 76 (Furthermore, there
is some reason to think that the Court is pay-ing attention to this
polling data. Consider Chief Justice Rehnquists 1999 year-end
report. The Chief Justice approvingly cited a February 1999 Gallup
Poll showing that 80 percent of Americans surveyed stated that they
had a great deal or fair amount of trust for the judicial branch of
government, far exceeding figures for the other branches.).
114 See Helmut Norpoth & Jeffrey A. Segal, Popular Influence
on Supreme Court Decisions, 88(3) am. pol. sCi. Rev. 711, 712
(1994).
115 See, e.g., Friedman, supra note 83, at 327 (describing
diffuse support as the leash on which the Court operates).
116 See, e.g., David A. Strauss, The Modernizing Mission of
Judicial Review, 76 u. Chi. l. Rev. 859, 900 (2009) (The problem is
that the courts may be too ready to yield to the political process
and may therefore fail to vindicate principles that courts, and
courts alone, are well suited to enforce.).
117 See, e.g., biCkel, supra note 12, at 69, 258 (devising the
technique of passive virtues in order to avoid the corruption of
the legal language in face of public pressures); Robert C. Post
& Neal S. Siegel, Theorizing the Law/Politics Distinction:
Neutral Principles, Affirmative Action, and the Enduring Legacy of
Paul Mishkin, 95 CaliF. l. Rev. 1473, 14841488, 14961497, 1506
(2007) (discussing the tension between adhering to legal language
and corrupting legal logic in order to preserve popu-lar
support).
118 See Strauss, supra note 116, at 898.
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32 ICON 11 (2013), 1333
These concerns should not be underestimated. However, one must
remember that enduring public support is not expected to serve as
any kind of guidance for constitu-tional decision-making. Indeed,
we do not claim that the Courts normative legitimacy is based on
the justices ability to reflect public opinion.
Conclusion: Ulysses wants to be bound all the timeAttempts to
justify the Supreme Courts CM judicial review authority implicitly
accept the story of Ulysses and the Sirens119 as a metaphor for
describing the rela-tions between the People, the Constitution, and
the Court. According to this meta-phor, the People (Ulysses) are
well aware of the ill influence of short-term preferences (Ulyssess
desires while hearing the Sirens sing) on their deep constitutional
com-mitments (the ships course). Hence, they make a pre-commitment
and bind them-selves to the Constitution (the ships mast) in order
to ensure that they will not cause the ship to stray from its
course. Despite Ulyssess transient protests (current public opinion
or the legislators opinion on the substantive issue) when hearing
the Sirens sing, the ropes (the Court) bind him to the mast, and
save him from losing his mind and changing the ships course.
Without the ropes, [i]f voters were allowed to get what they
wanted, Stephen Holmes predicts that they would inevitably
shipwreck themselves.120
As elaborated above, constitutional theorists have suggested
different right courses for society to adopt.121 Protecting the
human rights of disadvantaged groups of society, preserving
democratic procedures, or guarding certain basic moral values are
all examples of societys right course extracted from the
Constitution.122 The CM judicial review authority serves as a
mechanism that ensures adherence to the chosen course, even against
the current desires of the public. Thus, the CM nature of judicial
review authority is understood as a virtue, since it ensures
society will con-tinue in the right direction.123
In recent years, some legal scholars have attempted to dissolve
the CM difficulty. Based on empirical work showing that the Court
does not usually stray from the pref-erences of the public, these
scholars claim that the Court is not a CM institution at
119 homeR, The odyssey, bk. XII, lines 148, 151152 (Martin
Hammond trans., 2000). See Daryl J. Levinson, Parchment and
Politics: The Positive Puzzle of Constitutional Commitment, 124
haRv. l. Rev. 657, 657 (2011) (Constitutionalism is often
analogized to Ulysses binding himself to the mast in order to
resist the fatal call of the Sirens.); Jon elsTeR, ulysses unbound
88105 (2000) (using this metaphor to explain the Constitution as a
pre-commitment mechanism).
120 Stephen Holmes, Precommitment and the Paradox of Democracy,
in ConsTiTuTionalism and demoCRaCy 195, 196 (Jon Elster & Rune
Slagstad eds., 1988).
121 See supra section 2.1.122 See Roberto Gargarella, In Search
of a Democratic JusticeWhat Courts Should Not Do: Argentina,
1983
2002, 10 demoCRaTizaTion 181, 182 (2003) (describing several
justifications for the CM authority).123 Michael J. Klarman,
Majoritarian Judicial Review: The Entrenchment Problem, 85 geo.
l.J. 491, 492 (1997)
(Those who praise countermajoritarian judicial review as a
virtue . . . have failed to reconcile their defense of minority
rights with the principle of majority rule.).
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Solving the countermajoritarian difficulty 33
all. The Court does not serve as binds around the Ulyssess
hands; instead, it follows Ulysses captive will. Moreover, if the
Court did try to prevent Ulysses from following the Sirens song, it
would, in all likelihood, fail.124
The metaphor of Ulysses and the Sirens indeed fails to capture
the truth about the current relationship between the American
People, the Constitution, and the Court. Its failure, however, does
not stem from ignoring the Courts majoritarian nature. The Court
does, at times, act in a CM fashion. Based on empirical works we
argued that the public and its representatives have accepted and
supported the Courts authority to act in a CM fashion. The Court
enjoys second-order enduring support even when its decisions lack
first-order specific support.125 Though Ulysses wants to change the
ships course when he hears the Sirens song and follow their
seduction, he acknowl-edges, at the same time, the importance of
the ropes that bind him to the mast. In other words, even when the
Sirens sing, the ropes legitimacy is established by Ulyssess
acceptance of the role they play. His acceptance of the binds is
not merely a pre-com-mitment made before the sirens start singing.
Ulysses wants to remain bound even as the Sirens sing; his enduring
support for the ropes work does not stop even when he protests
vigorously.126
The CM difficulty in its literal sense is neither justified nor
dissolved. It is solved. The same factor that creates the
difficulty (public opinion) is at the same time its solu-tion. The
Court may decide cases in a manner that counters public opinion,
but its CM authority is accepted by the majority of the public and
its representatives. The public and its representatives award the
Court a majoritarian approval even when it acts in a
countermajoritarian fashion. The People have spoken: they want to
be bound by judicial constraints.
124 Cf. The Proper Role of the United States Supreme Court in
Civil Liberties Cases, 10 Wayne l. Rev. 457, 476 (1964) (Alexander
Bickel: [A] court that decided the equivalent of five cases such as
Brown v. Board of Education in a single year would have seen the
end of the institution, I am sure.).
125 Cf. Pildes, supra note 25, at 148149 (discussing the notion
of second-order majoritarian support).126 Like every metaphor,
Ulysses and the Sirens has its defects. See, e.g., JeRemy WaldRon,
laW and disagReemenT
261271 (1999); Jon elsTeR, solomoniC JudgmenTs 196 (1989).
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