What does this say about the counter-majoritarian difficulty?
Corinna Lain has an interesting piece, of what she calls Upside-Down Judicial Review.
Here is the abstract:
The counter-majoritarian difficulty assumes that the democratically elected branches are majoritarian and the unelected Supreme Court is not. But 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 conventional understanding of the Court’s function on its head. Instead of a counter-majoritarian Court checking the majoritarian branches, we see a majoritarian Court checking the not-so-majoritarian branches, enforcing prevailing norms when the representative branches do not. This Article uses three classic cases of the countermajoritarian difficulty — Brown v. Board of Education, Furman v. Georgia, and Roe v. Wade — to illustrate and conceptualize a distinctly majoritarian, upside-down understanding of judicial review. Democracy never looked so undemocratic — nor, one could argue, has it ever worked so well.
From the paper:
Taken together, these two disparate strands of scholarship suggest a world where institutional roles are sometimes flipped upside down: the branches most majoritarian in theory are least majoritarian in practice, and vice versa. In this upside-down world, a Supreme Court ruling may just look countermajoritarian because the baseline against which it is judged—the ostensibly majoritarian stance of the legislative and executive branches9—is itself out of sync with majority will. Sometimes in a representative democracy, the representative branches aren’t.
Indeed, several of history’s most famously countermajoritarian cases—Brown v. Board of Education,10 Furman v. Georgia,11 and Roe v. Wade12—can be understood as examples of this phenomenon. In each of these cases, the Supreme Court rejected the results of the democratic process, but in all three, there is little reason to think that the democratic process was getting democracy right. When viewed in historical context, the Court’s position was actually a better reflection of prevailing sentiment than that of the democratically-elected, ostensibly majoritarian branches.
So I reckon that in such cases the Court is more democratic than the democratically elected branches.
The implications are striking. The countermajoritarian difficulty assumes that the democratically-elected branches are majoritarian and the unelected Supreme Court is not.13 But 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 conventional understanding of the Court’s function on its head. Instead of a countermajoritarian Court checking the majoritarian branches, cases like Brown, Furman, and Roe showcase a majoritarian Court checking the not-so-majoritarian branches, enforcing prevailing norms when the representative branches don’t. Democracy never looked so undemocratic—nor, one could argue, has it ever worked so well.
Oh boy, that last statement may be controverted by some.
The fact that the Supreme Court could be more majoritarian than the ostensibly majoritarian branches also has profound implications for the use of legislation as a proxy for majority will. For constitutional theory, it suggests the need to refine the countermajoritarian difficulty, taking a more nuanced approach to determining when the Supreme Court has taken a countermajoritarian stance. 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” in its Eighth Amendment cases and beyond.14 Legislation is not necessarily the most reliable evidence of contemporary values. Sometimes it is not reliable at all.
So what do courts look at, rather than legislation, to discern the will of the people?
When the representative branches are not responsive to deep shifts in public opinion, pressure builds to effectuate majoritarian change—to give force of law to the transformation of attitudes occurring in larger society. Sometimes the Supreme Court serves as the conduit of that change, responding to and reflecting prevailing norms when the representative branches don’t. Here judicial review squares the circle: it enforces majority will and polices the political process too. Indeed, as we shall see, the force of majority will is what pushes the Court to police the political process in the first place.
And here is how she defines “majority will”:
Fourth and finally, there is the tricky issue of what I (and everyone else who writes in this area) mean by the term “majority will.” By way of definition, I use the term to refer to prevailing sentiment at the national rather than local level, consistent with the scholarly discourse in which I am writing.18 Beyond that, identifying majority will is notoriously difficult. Public opinion poll data can be skewed, depending on how questions are asked. Institutional support can reflect elite, rather than popular, opinion—so too the position of the popular press. Yet each of these measures is vital to understanding the larger sociopolitical context in which the Supreme Court operates, each plays a part in constructing majority will. To the extent majority will exists at all (and sometimes it does not), it is the product of a confluence of forces, each contributing to a sense of consensus in its own way. For this reason, my case study discussion examines a variety of sociopolitical indicators, aiming to capture the zeitgeist of the moment in which each ruling was made. But my point, in the end, is much more narrow—that relying on legislation as the sole, or even primary, measure of majority will produces a picture of the Court that is at best misguided, and at worst deeply flawed. If the countermajoritarian difficulty is to remain our academic obsession, we academics need to figure out what that difficulty is. And the account we have now, as a purely descriptive matter, is overly simplistic and of limited use.
This is very Barry Friedman-esque (who is thanked in the acknowledgments).