Was Brown v. Board of Education Countermajoritarian?

September 2nd, 2010

This article, titled The Countermajoritarian Classics (and an Upside Down Theory of Judicial Review), says no, and other famous precedents that are pereceived to be countermajoritarian were in fact in sync with the majority sentiments of the time. Here is the abstract:

Brown v. Board of Education. Engel v. Vitale. Miranda v. Arizona. Furman v. Georgia. Roe v. Wade. Within the academy, these countermajoritarian classics stand as a testament to the Supreme Court’s willingness to thwart the will of a national majority in the name of minority rights. Yet a historical examination of these cases reveals a dramatically different narrative, illustrating just how majoritarian even ostensibly countermajoritarian cases can be. Indeed, in several of these cases, the Court’s ruling was so majoritarian, so consistent with national public opinion, that it only looked countermajoritarian because the seemingly majoritarian stance of the democratically elected branches wasn’t. Considered in full historical context, the Court’s position was actually a better reflection of prevailing sentiment than that of the legislative and executive branches. The implications are striking. While most theories of judicial review see the Court’s countermajoritarian capacity as its unique institutional attribute, the classics show that sometimes just the opposite is true. Sometimes it is the democratically elected branches that are out of sync with majority will, and the Supreme Court that bridges the gap, turning the traditional understanding of the Court’s role on its head. The result is a distinctly majoritarian, upside-down theory of judicial review, one that recognizes the Court’s ability to be more majoritarian than the majoritarian branches, rather than less. Democracy never looked so undemocratic – nor, one could argue, has it ever worked so well.

From the article:

Indeed, several of the cases allow for an even stronger claim. In Brown and Roe (and arguably others as well),15 the Supreme Court’s ruling had so much majoritarian support that it only looked countermajoritarian because the presumably majoritarian results of the legislative and executive branches weren’t. In these cases, the Court rejected the results of the democratic process, but there is little reason to think that the democratic process was getting democracy right. When viewed in full historical context, the Court’s position was actually a better reflection of prevailing sentiment than that of the democratically elected, representative branches.

And what conclusion does the author draw from this observation:

For constitutional theory, this suggests the need to reconsider the current conceptualization
of the countermajoritarian difficulty. And for constitutional doctrine, it presents a significant challenge to the Supreme Court’s reliance on legislation as “the clearest and most reliable objective evidence of contemporary values.”17 Legislation is not necessarily the most reliable evidence of contemporary values. Sometimes it is not reliable at all. For constitutional theory,this suggests the need to reconsider the current conceptualization of the countermajoritarian difficulty. And for constitutionaldoctrine, it presents a significant challenge to the Supreme Court’sreliance on legislation as “the clearest and most reliable objectiveevidence of contemporary values.”17 Legislation is not necessarilythe most reliable evidence of contemporary values. Sometimes itis not reliable at all.

Instead of a countermajoritarian Court checking the majoritarian branches, cases like Brown and Roe showcase a majoritarian Court checking not-so-majoritarian branches, enforcing prevailing norms when the representative branches don’t. Democracy never looked so undemocratic—nor, one could argue, has it worked so well.

This is a very Barry Friedman-esque “Will of the People” style article (and no surprise that Barry Friedman is thanked in the acknowledgement section).

So the courts, and not the elected branches, may be the most “the clearest and most reliable objective evidence of contemporary values” in some cases? I need to ponder that one for a bit but it sounds like somewhat of a blank check for the Courts to do whatever they want.

While Friedman’s work seems to be a descriptive account of what the Courts do, this article seems to justify the Court’s actions to rule in what some may view as a countermajoritarian manner based on what the court, and not society, sees as in fact the majority sentiments of the country. I wonder which entity, the elected branches or the unelected branches, are in the best position to make this determination.

Update: After some further reflection, I ponder how much credence we can give to the Courts to sense what the majority sentiments are in light of their dismal failure at discerning a “national consensus” in the 8th amendment context (see herehere, and here).

Ilya Shapiro and I discuss the fallacy of the “national consensus”in Pandora’s Box, pp. 57-62 beyond the context of the 8th Amendment.

The fallacy of recognizing national consensuses is highlighted by the aftermath of Kennedy v. Louisiana. If the Supreme Court could not properly analyze the extent of the consensus among state laws governing the sentencing of child rapists, an area that any first-year law student could understand with the proper Lexis search, how can we expect judges to understand consensuses on nebulous and polarizing social issues—on which public opinion ebbs and flows—such as the right to health care, the right to education, or reproductive rights?

Balkin himself acknowledges that “[i]n 1973, when Roe was decided, the right to abortion was not a privilege or immunity of national citizenship” because only four states had adopted the rules Roe laid down. He counters, however, that “most of the public now regards a basic abortion right as among the guarantees of citizenship” and, in the long run, “it should eventually be protected under the declaratory model of the Privileges or Immunities Clause.” But how is the Court to determine society’s views to a point that gives them constitutional authority?—particularly in light of the complications in as comparatively simple a task as surveying state laws regarding capital punishment for child rapists. Kennedy v. Louisiana thus belies Balkin’s attempt to portray the right to abortion as a privilege or immunity of national citizenship by virtue of a national consensus.

Moreover, what constitutes a national consensus? Half the population? Two thirds? Ninety percent? To paraphrase Justice Brennan’s quip, why not whatever five duly confirmed justices think? Should the Court commission its own Gallup Poll? What standard should the consensus be based on? How long should it exist? These are inherently subjective determinations, not reducible to judicially or legislatively manageable standards.

Finally, and perhaps most significantly from a constitutional perspective, for a court to determine that simply because “most of the public” considers some right to be among the privileges or immunities of citizenship—not that the public thinks in terms of “privileges or immunities” or any other constitutional terms of art—ignores the rights of minorities. That is, the Constitution is countermajoritarian in many ways—as would be expected from a charter that establishes a republic, not a pure democracy. The Constitution provides for the indirect election of the president through an electoral college and, before the Seventeenth Amendment, for state legislatures to select senators. Impeachment requires super-majorities, as does the constitutional amendment process—which is why Balkin, Ackerman, and others propose constructive amendment theories. All these provisions reflect a fear of oppressive majority rule and aim to prevent factions from seeking economic advantage and overwhelming our system of liberty.

Finally, why limit this analysis to consensus among states? Why not consider consensuses among nations? For example, Justice Kennedy has looked to foreign and international law to establish norms with respect to executing minors—and thus confirm his understanding of the Eighth Amendment. Why then not look to European conventions and treaties to recognize consensuses on rights among modern, progressive peoples to confirm our understanding of the Fourteenth Amendment? These are such divisive and controversial issues that, ultimately, a consensus model would “just [be] giving effect to the [Court’s] own preferences.”