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Beyond the “Countermajoritarian Difficulty”: Lessons From Contemporary Democratic Theory

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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.

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Notes

  1. Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis: Bobbs-Merrill, 1962), 16–17.

  2. Bickel, The Least Dangerous Branch, 18.

  3. Mark Tushnet, “The Jurisprudence of Constitutional Regimes: Alexander Bickel and Cass Sunstein,” in The Judiciary and American Democracy: Alexander Bickel, The Countermajoritarian Difficulty, and Contemporary Constitutional Theory, ed. Kenneth Ward and Cecilia Castillo (Albany: State University of New York Press, 2005), 23–30; Thomas Keck, The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism (Chicago: University of Chicago Press, 2004), 61–64.

  4. There are, of course, exceptions; see for example Sanford Levinson, Our Undemocratic Constitution (New York: Oxford University Press, 2006).

  5. Ian Shapiro, The State of Democratic Theory (New Haven: Yale University Press, 2003).

  6. Terri Peretti, “An Empirical Analysis of Alexander Bickel's The Least Dangerous Branch,” in The Judiciary and American Democracy, ed. Kenneth Ward and Cecilia Castillo (Albany: State University of New York Press, 2005), 140.

  7. Robert Dahl, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” The Journal of Public Law 6 (Spring 1957): 279–95; Stephen Wasby, The Impact of the American Supreme Court: Some Perspectives (Chicago: Dorsey Press, 1970); Stuart Scheingold, The Politics of Rights: Lawyers, Public Policy, and Political Change (New Haven: Yale University Press, 1974) and “Constitutional Rights and Social Change: Civil Rights in Perspective,” in Judging the Constitution: Critical Essays on Judicial Lawmaking, ed. Michael W. McCann and Gerald L. Houseman (Glenville, IL: Scott, Foresman, 1989); Donald Horowitz, The Courts and Social Policy (Washington, DC: Brookings Institution, 1977); Peretti, “An Empirical Analysis,” 130–33.

  8. Lucas A. Powe, Jr., The Warren Court and American Politics (Cambridge, MA: Belknap Press, 2000).

  9. Mark Graber, “Constitutional Politics and Constitutional Theory: A Misunderstood and Neglected Relationship,” Law & Social Inquiry 27 (April 2002): 313. Of course, whether (or to what extent) the key decisions of the Warren Court are “majoritarian” depends to some degree on one's perspective. Some of the crucial decisions—such as Brown, Griswold, and Gideon v. Wainwright—represented national majorities prevailing over regional outliers. Some, such as the great reapportionment cases Baker v. Carr and Reynolds v. Sims, were majoritarian by any definition. Others, such as the court's school prayer and many of its criminal procedure decisions, were genuinely contrary to public opinion. None of the major decisions, however, were antithetical to the Democratic coalition that controlled the federal government during the 1960s. And certainly, Bickel's framework is incapable of accounting for these differences.

  10. Lisa Conant, Justice Contained: Law and Politics in the European Union (Ithaca, NY: Cornell University Press, 2002), 50–94.

  11. Bickel, Least Dangerous Branch, 21.

  12. Chistopher E. Eisgruber, Constitutional Self-Government (Cambridge: Harvard University Press, 2001), 93.

  13. See for example Conant, Justice Contained; Scheingold, Politics of Rights; Frances Zemans, “Legal Mobilization: The Neglected Role of Law in the Political System,” American Political Science Review 77 (December 1983): 690–703; Michael McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization (Chicago: University of Chicago Press, 1994); Charles Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago: University of Chicago Press, 1998); Troy Q. Riddell, “The Impact of Legal Mobilization and Judicial Decisions: The Case of Official Minority-Language Education Policy in Canada for Francophones Outside Quebec,” Law & Society Review 28 (September 2004), 583–610; Rachel A. Cichowski, The European Court and Civil Society: Litigation, Mobilization and Governance (New York: Cambridge University Press, 2007).

  14. Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge: Cambridge University Press, 2003), 64. Emphasis retained from original.

  15. See, for example, Mark Tushnet, The New Constitutional Order (Princeton: Princeton University Press, 2003); Keith Whittington, Political Foundations of Judicial Supremacy (Princeton: Princeton University Press, 2007), 41–45.

  16. Thomas M. Keck, “Party, Policy or Duty: Why Does the Supreme Court Invalidate Federal Statutes?” American Political Science Review 101 (May 2007): 321–38.

  17. Jacob Hacker and Paul Pierson, Off Center: The Republican Revolution and the Erosion of American Democracy (New Haven: Yale University Press, 2005).

  18. See, for example, Keith Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (Cambridge: Harvard University Press, 2001); J. Mitchell Pickerill, Constitutional Deliberation in Congress: The Impact of Judicial Review in a Separated System (Durham, NC: Duke University Press, 2004); Neal Devins and Louis Fisher, The Democratic Constitution (New York: Oxford University Press, 2004).

  19. Geoffrey Stone, Perilous Times: Free Speech in Wartime from The Sedition Act of 1798 to The War on Terrorism (New York: Norton, 2004), chapter 2.

  20. Howard Gillman, “How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875–1891,” American Political Science Review 96 (September 2002): 511–24; J. Mitchell Pickerell and Cornell Clayton, “The Rehnquist Court and the Political Dynamics of Federalism,” Perspectives on Politics 2 (June 2004): 233–48; Keith Whittington, “‘Interpose Your Friendly Hand’: Political Supports for the Exercise of Judicial Review by the United States Supreme Court,” American Political Science Review 99 (November 2005): 583–96.

  21. George I. Lovell and Scott E. Lemieux, “Assessing Juristocracy: Are Judges Rules or Agents?” Maryland Law Review 65 (2006): 100–14.

  22. George I. Lovell, Legislative Deferrals: Statuatory Ambiguity, Judicial Power, and American Democracy (Cambridge: Cambridge University Press, 2003).

  23. See, for example, William Forbath, Law and the Shaping of the American Labor Movement (Cambridge: Harvard University Press, 1991) and Victoria Hattam, Labor Visions and State Power (Princeton, NJ: Princeton University Press, 1993).

  24. Mark Graber, “The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary,” Studies in American Political Development 7 (Spring 1993): 35–73.

  25. See, for example, Robert Nagel, Constitutional Cultures: The Mentality and Consequences of Judicial Review (Berkeley: University of California Press, 1993); Christopher P. Manfredi and James B. Kelly, “Six Degrees of Dialogue: A Response to Hogg and Bushell,” Osgoode Hall Law Journal 37 (Fall 1989): 513–28; Sujit Choudhry, “Worse Than Lochner?” in Access to Care, Access to Justice: The Legal Debate over Private Health Insurance in Canada, ed. Colleen Flood, Kent Roach, and Lorne Sossin (Toronto: University of Toronto Press, 2005), 75–100.

  26. Janet Hiebert, Charter Conflicts (Montreal: McGill/Queens University Press, 2002).

  27. Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton, NJ: Princeton University Press, 2008), 80–82.

  28. Bickel, Least Dangerous Branch, 16–18.

  29. According to Josiah Ober, the conflation of democracy with majority rule is as old as the concept of democracy itself, but it isn't what was meant by democracy in Athens. Rather, the confusion of democracy with majority rule was a misreading of democracy's original meaning by elite critics of democracy hoping to discredit it as a form of government. See Josiah Ober, “The Original Meaning of “Democracy”: Capacity to Do Things, Not Majority Rule,” Constellations 15 (March 2008): 3–9.

  30. Lovell, Legislative Deferrals, 13.

  31. Ronald Dworkin considers judicial review as a necessary and good antidote to democratic legislatures or executives whose laws and actions violate political equality; see, for example, Sovereign Virtue (Cambridge: Harvard University Press, 2000). William Riker suggests that judicial review is one of several features of government that can guard against attempts to slip into what he calls “populism” (defined as when the elected legislatures attempt to govern according to the collective will of the people, which for Riker is both incoherent and dangerous). See his Liberalism Versus Populism: A Confrontation Between the Theory of Democracy and The Theory of Social Choice (Long Grove, IL: Waveland Press, 1988), 250.

  32. This view is common among both legal and political theorists. Prominent legal theory works that advance positions along this line include Mark Tushnet, Taking the Constitution Away From the Courts (Princeton, NJ: Princeton University Press, 1999) and Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2003). Two prominent political theorists who take this line with respect to judicial review's democratic status are Jeremy Waldron and Richard Bellamy. See Waldron, Law and Disagreement (Oxford: Oxford University Press, 1999) and “The Core of the Case Against Judicial Review,” Yale Law Journal 115 (July 2006): 1346–1406; and Richard Bellamy, Political Constitutionalism: A Republican Defense of the Constitutionality of Democracy (Cambridge: Cambridge University Press, 2007), “Republicanism, Democracy, and Constitutionalism,” in Republicanism and Political Theory, ed. Cecile Leborde and John Maynor (Malden, MA: Blackwell, 2008), 159–89, and “The Democratic Constitution: Why Europeans Should Avoid American Style Constitutional Judicial Review,” European Political Science 7 (Winter 2008): 9–20.

  33. In his discussion of W.B. Gallie's concept of “essentially contested concepts,” William Connolly makes precisely this point with regard to democracy: “Democracy—and other concepts like it—display in our discourse over a normal range of cases a close connection between its criteria and its normative point. The relation is close enough to allow us to say that if that connection were somehow abrogated by a large number of people for a large number of cases of a long period of time, the concept would either fall into disuse or undergo fundamental change…both the points and the criteria of our concepts are sanctioned by convention. Logically these conventions could be altered in an infinite number of ways, but showing that something is logically permissible does not establish that it is also justifiable and reasonable,” William Connolly, Terms of Political Discourse (London: Blackwell, 1993), 32. See also W.B. Gallie, “Essentially Contested Concepts,” in The Importance of Language, ed. Max Black (Englewood Cliffs, NJ: Prentice-Hall, 1962), 121–45.

  34. Carlos Santiago Nino, The Constitution of Deliberative Democracy (New Haven: Yale University Press, 1998). Nino does note several exceptions to his rejection of judicial review on democratic grounds, including judicial review “that strengthens the democratic process” (199–203). Alternatively, the process of litigating rights can actually stimulate and promote popular deliberation on constitutional principles—particularly with respect to currently unpopular constitutional ideals not subject to serious public deliberation. An account of this process with respect to the ACLU's shift toward a litigation-centered strategy in the 1920s can be found in Emily Zackin, “Popular Constitutionalism's Hard When You're Not Very Popular: Why the ACLU Turned to Courts,” Law & Society Review 42 (June 2008): 367–96.

  35. For example, Cass Sunstein and Richard Burt use deliberative democracy to critically evaluate U.S. Supreme Court decision making throughout history. See Sunstein, The Partial Constitution (Cambridge: Harvard University Press, 1996) and Burt, The Constitution in Conflict (Cambridge, MA: Belknap Press, 1995).

  36. Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, MA: MIT Press, 1996), 167–68.

  37. Christopher F. Zurn, Deliberative Democracy and the Institutions of Judicial Review (Cambridge: Cambridge University Press, 2007).

  38. Zurn, Deliberative Democracy, 4–6. See also his related discussion about arguments that legal discourse is particularly well suited to moral arguments at 163–78.

  39. Zurn, Deliberative Democracy, 254.

  40. Zurn, Deliberative Democracy, 281.

  41. See especially Cass R. Sunstein, One Case At A Time: Judicial Minimalism and the Supreme Court (Cambridge: Harvard University Press, 1999); Eisgruber, Constitutional Self-Government.

  42. As Zurn notes, Habermas appears to have abandoned the “critical-utopian potential of his broader project in favor of a type of ameliorist ‘justificatory liberalism’ that merely intends to show why the way we do things around here is pretty much just fine as it is.” Zurn, Deliberative Democracy, 244. See also 252.

  43. Many deliberative democratic theorists acknowledge this point, but two sustained discussions of this feature of deliberative democracy and the challenges raised by it are Jack Knight and James Johnson, “What Sort of Political Equality Does Deliberative Democracy Require?” in Deliberative Democracy: Essays on Reason and Politics, ed. James Bohman and William Rehg (Cambridge, MA: MIT Press, 1997), 279–321, and Archon Fung, “Democracy Before the Revolution: Towards an Ethic of Deliberative Democracy,” Political Theory 33 (June 2005): 397–419.

  44. It is beyond the scope of this article to make the case that this understanding of democracy's normative point has long been part of democratic discourse and theory. However, it is similar to the tradition Michael Goodhart calls “emancipatory democracy,” whose history includes the Levellers, Tom Paine, Mary Wollestonecraft, Karl Marx, Carole Pateman and others. See Michael Goodhart, Democracy as Human Rights: Freedom and Equality in the Age of Globalization (London: Routledge, 2005), 117–33. Among contemporary theorists, in addition to Pettit and Shapiro, the notion that democracy's primary point is to oppose, reduce, and eliminate domination is also a prominent feature of the work of Iris Marion Young. See, especially, Justice and the Politics of Difference (Princeton: Princeton University Press, 1990), “State, Civil Society, and Social Justice,” in Democracy's Value, ed. Ian Shapiro and Casiano Hacker-Cordon (Cambridge: Cambridge University Press, 1999), 141–62, and Inclusion and Democracy (Oxford: Oxford University Press, 2000). Opposition to domination is also a central feature of Samuel Bowles and Herbert Gintis's effort to develop a postliberal, postmarxist democratic theory: see Democracy and Capitalism: Property, Community, and the Contradictions of Modern Social Thought (New York: Basic Books, 1986). This emerging school of democratic theory is explored in more detail in David Watkins, “Conceptualizing Democracy in a Global Era” (Ph.D. dissertation, University of Washington, 2008), chapter 3.

  45. Shapiro, The State of Democratic Theory, 3.

  46. Shapiro, The State of Democratic Theory, 4.

  47. Shapiro, The State of Democratic Theory, 66.

  48. Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge: Harvard University Press, 1980).

  49. Daniel R. Ortiz, “Pursuing a Perfect Politics: The Allure and Failure of Process Theory,” Virginia Law Review 77 (May 1991), 723.

  50. For further elaboration of these points, see for example Mark Tushnet, “Darkness on the Edge of Town: The Contributions of John Hart Ely to Constitutional Theory,” Yale Law Journal 89 (May 1980): 1037; Paul Brest, “The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship,” Yale Jaw Journal 90 (April 1981) 1063; Ortiz, “Pursing a Perfect Politics.”

  51. Indeed, more generally realistic assessments of judicial review almost certainly require accepting that nothing can compel courts consisting of multiple judges to apply similar interpretive theories, and therefore justifications of judicial review that are dependent on the use of particular interpretive theories are unlikely to be particularly useful. See Adrian Vermuele, “The Judiciary is a They, Not an It: Interpretive Theory and the Fallacy of Division,” Journal of Contemporary Legal Issues 14 (2005): 549–84.

  52. United States v. Carolene Products 304 U.S. 144 (1938), n4.

  53. At this point Shapiro's account and that of Jeremy Waldron, a prominent judicial review critic, are much less far apart than they might appear. Waldron allows that judicial review might be normatively justified in some “non-core cases” in which an unpopular and historically beleaguered minority is refused political rights. See Waldron, “The Core of the Case,” 1403.

  54. Consider here Rogers Smith's argument about the liberal, republican, and ascriptive threads of American ideas and laws about citizenship in his Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven, CT: Yale University Press, 1999). While Smith focuses primarily on these different approaches to the law, it is clear enough that these threads can coexist in the mind of particular individuals. While Smith implies that the logics of these different threads are mutually exclusive, that does not rule out their holding sway simultaneously and in potentially contradictory ways in people's political views. Indeed, ascriptive views about unpopular minorities can (and, in the case of the era Smith was writing about, did) make denying their rights appear consistent with general liberal ideals of political equality.

  55. Waldron, “The Core of the Case,” 1404–05.

  56. As Shapiro points out, any just hierarchical arrangement remains in constant danger of devolution into a tool of domination. Shapiro, The State of Democratic Theory, 4. See also Ian Shapiro, Democratic Justice (New Haven, CT: Yale University Press, 1999).

  57. Philip Pettit, Republicanism: A Theory of Freedom and Government (New York: Oxford University Press, 1997); A Theory of Freedom: From the Psychology to the Politics of Agency (New York: Oxford University Press, 2001).

  58. Philip Pettit, “Republican Freedom and Contestatory Democratization,” in Democracy's Value, ed. Ian Shapiro and Casiano Hacker-Cordon (Cambridge: Cambridge University Press, 1999), 163. See also Pettit, “Democracy, Electoral and Contestatory,” in Designing Democratic Institutions: NOMOS XXLI, ed. Ian Shapiro and Steven Macedo (New York: New York University Press, 2000), 106.

  59. Pettit, A Theory of Freedom, 153.

  60. Pettit, “Democracy, Electoral and Contestatory” and “Depoliticising Democracy,” Ratio Juris 17 (March 2004): 52–65.

  61. Pettit, “Deliberative Democracy, The Discursive Dilemma, and Republican Freedom,” in Philosophy, Politics, and Society, vol. 7, ed. James Fishkin and Peter Laslett (New York: Cambridge University Press, 2003).

  62. Pettit, “Democracy: Electoral and Contestatory,” 115.

  63. Since there are good reasons to regard effective political participation as a defense mechanism against both dominium and imperium.

  64. Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge: Harvard University Press, 2004).

  65. Hirschl, Towards Juristocracy, 44.

  66. Hirschl, Towards Juristocracy, 43–44.

  67. It should perhaps be noted here that while Hirschl's interpretation of the historical cases he uses is plausible, he does not adduce much evidence demonstrating the causal link between elites' declining political power and the entrenchment of a judicial review sympathetic to their interests.

  68. Hirschl, Towards Juristocracy, 62–63.

  69. Scheppele's relevant work has been primarily on the Hungarian and Russian constitutional courts. See Kim Lane Scheppele, “The New Hungarian Constitutional Court,” East European Constitutional Review 8 (Fall 1999): 81–87, “Declarations of Independence: Judicial Reactions to Political Pressure,” in Judicial Independence at the Crossroads: An Interdisciplinary Approach, ed. Stephen B. Burbank and Barry Friedman (Thousand Oaks, CA: Sage, 2002), 227–80, “Constitutional Negotiations: Political Contexts of Judicial Activism in Post-Soviet Europe,” International Sociology 18 (March 2003): 219–38, and “Democracy by Judiciary. Or, Why Courts Can Be More Democratic than Parliaments,” in Rethinking the Rule of Law After Communism, ed. Adam Czarnota, Martin Kreiger, and Wojciech Sadurski (Budapest: Central European University Press, 2005), 25–60.

  70. When the court struck down the Bokros reform package on constitutional grounds, their decision was supported by 84 percent of those who voted for the ruling party, and 90 percent of those who had voted for the opposition. The ruling party at the time had a sufficient majority to change the constitution with a single vote (2/3 is needed and they made up 72 percent of parliament) but they chose not to challenge the rule directly (Scheppele, “Democracy by Judiciary,” 49–50).

  71. Scheppele, “Democracy by Judiciary,” 58, n29. Many of the justices were called at home by World Bank officials lobbying them against striking down these laws.

  72. An English translation of one of the key “Bokros package cases” that uses the principle of legal security can be found in Laszlo Solyom and George Brunner, ed., Constititonal Judiciary in a New Democracy: The Hungarian Constitutional Court (Ann Arbor: University of Michigan Press, 2000), 322–32.

  73. In a sense, the court was not so much empowered to act against parliament as much as they were uniquely empowered to act on behalf of the avowed interests of Hungarians against international meddling. The prestige and respect for constitutional courts among IMF officials was a mechanism of domination prevention they were uniquely positioned to wield.

  74. Scheppele makes a similar case for the democratic bona fides of the Russian Supreme Court. See Scheppele, “Constitutional Negotiations,” 227–34.

  75. Scheppele, “Democracy by Judiciary,” 35–37.

  76. See, for example, Mark A. Graber, “The Passive-Aggressive Virtues: Cohens v. Virginia and the Problematic Establishment of Judicial Power,” Constitutional Commentary 67 (Spring 1995): 12.

  77. Epp, The Rights Revolution, 86.

  78. Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy, 2nd ed. (Princeton, NJ: Princeton University Press, 1996). The three categories of rights Shue argues as “basic” are subsistence, security, and participation. The notion that freedom from poverty should be understood as a foundational right has a long history. See, for example, Cass Sunstein's discussion of FDR's “Four Freedoms” speech: The Second Bill of Rights: FDR's Unfinished Revolution and Why We Need It More Than Ever (New York: Basic Books, 2004). Thomas Jefferson also understood poverty as a threat to republican self-government, which led him to prioritize access to property (for subsistence without subservience and domination) and education. He articulated the relationship between subsistence rights (delivered through access to land), poverty, and citizenship in his 1776 draft constitution for the state of Virginia, which created a property requirement for voting of 25 acres, but later in the same document he advocated that “Every person of full age neither owning nor having owned [50] acres of land, shall be entitled to an appropriation of [50] acres.” In The Papers of Thomas Jefferson, Volume I: 1760–1776, ed. Julian P. Boyd (Princeton, NJ: Princeton University Press, 1950), 358.

  79. Hirschl, Towards Juristocracy, 153.

  80. This point is made by Leslie Goldstein, “From Democracy to Juristocracy,” Law & Society Review 38 (September 2004): 626.

  81. Linda McCain and James Fleming, “Constitutionalism, Judicial Review and Progressive Change,” Texas Law Review 84 (December 2005): 833–70.

  82. Ran Hirschl, “Constitutionalism, Judicial Review, and Progressive Change: A Rejoinder to McCain and Fleming,” Texas Law Review 84 (December 2005): 871–907, at 895.

  83. See note 57.

  84. Hacker and Pierson, Off Center, 93–100.

  85. For an elaboration of this argument, see F. L. Morton and Rainer Knopff, The Charter Revolution and the Court Party (Orchard Park, NY: Broadview, 2000).

  86. See Baker v. Carr 369 U.S. 186 (1962).

  87. Mark Tushnet, Weak Courts, 81. In this book, Tushnet argues throughout that “weak-form” judicial review (systems with legislative override provisions such as the “notwithstanding clause” in Canada) offers advantages over “strong-form” judicial review for the protection of social and economic rights. The reason he identifies here is that strong-form review places the responsibility for constitutional interpretation entirely on the constitutional courts, whereas the responsibility is shared with the legislature in “weak-form” judicial review systems.

  88. Keck, “Party, Policy or Duty,” 321.

  89. Malcolm Feeley and James Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons (New York: Cambridge, 2000).

  90. See note 26 and relevant text.

  91. Hiebert, Charter Politics 92–96; Christopher P. Manfredi and Scott E. Lemieux, “Judicial Discretion and Fundamental Justice: Sexual Assault in the Supreme Court of Canada,” The American Journal of Comparative Law 47 (Summer 1999): 489–514.

  92. For a history of the countermajoritarian difficulty as an “academic obsession” that dominated both the normative justifications of judicial review and constitutional interpretation as well as the empirical study of courts in post-World War II American legal scholarship, see Barry Friedman, “The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five,” Yale Law Journal 112 (November 2002): 153–260.

  93. See, for example, Paul Pierson, Dismantling the Welfare State: Reagan, Thatcher, and the Politics of Retrenchment (Cambridge: Cambridge University Press, 1995) and “Increasing Returns, Path Dependence and the Study of Politics,” American Political Science Review 94 (April 2000): 251–67.

  94. Graber, “Constitutional Politics and Constitutional Theory,” 327.

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Authors and Affiliations

  1. Hunter College, CUNY,

    Scott E Lemieux

  2. Seattle University,

    David J Watkins

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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.

See Michael Klarman, “Rethinking the Civil Rights and Civil Liberties Revolutions,” Virginia Law Review 82 (February 1996): 1–67.

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Lemieux, S., Watkins, D. Beyond the “Countermajoritarian Difficulty”: Lessons From Contemporary Democratic Theory. Polity 41, 30–62 (2009). https://doi.org/10.1057/pol.2008.25

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