1. ¹Hunter College, CUNY
2. ²Seattle University

^*The authors thank Jamie Mayerfeld, co-panelists and audience members at the 2005 Law & Society Association, 2007 Western Political Science Association, and 2008 Midwest Political Science Association conferences, and Polity's anonymous reviewers for their helpful comments and suggestions about various iterations of this paper.

Abstract

The "countermajoritarian difficulty," first formulated by Alexander Bickel almost fifty years ago, has been a profoundly influential starting point for those who critically examine the relationship between democracy and constitutional judicial review. However, the inadequacies of this framework are manifest. This framework rests, first, on unwarranted empirical assumptions about the "majoritarianism" of legislative action and the "countermajoritarianism" of courts. It also rests on unwarranted theoretical assumptions about the relationship between democracy and majoritarianism. Virtually all sophisticated approaches to democratic theory do not simply equal democracy with majoritarianism, although this is often forgotten when discussing judicial review. Using the "democracy-against-domination" approach, we assess the democratic status of judicial review, and conclude that judicial review has the potential to make a modest and contingent positive contribution to democracy.