Constitutional law scholars have long fretted over the "countermajoritarian difficulty" (CMD) a term coined by Alexander Bickel for an old issue: The fact that, except in the extraordinarily rare case of a blatant and obvious violation of the Constitution, judicial invalidation of legislative and executive action substitutes the views of unelected judges for those of officials who are accountable to the people. Within constitutional theory, there are various responses, ranging from those that offer interpretive methods deemed legitimate in light of the CMD to those that say that the CMD is not worth worrying about.
Meanwhile, I and others have previously noted that whatever one thinks of the CMD created by judicial review, its scope is not all that great, because the courts do not use the Constitution to interfere with the decisions of the political branches on such great matters as war and peace, taxation, and spending. Lately, that fact has become painfully obvious, even as it has--or should have--focused our attention on another CMD.
Here is my list of the top five policy questions currently facing the U.S., not necessarily in order:
1. Reviving the economy in the short run and developing a regulatory regime that, over the long run, does not lead to bubbles that burst, wreaking economic havoc and leaving taxpayers on the hook for bailing out institutions that are too big to fail.
2. Slowing global warming.
3. Bringing down the cost of health care while moving towards universal coverage.
4. A host of foreign policy challenges, from dealing with North Korea's bellicosity and Iran's indifference to its own popular will, to stabilizing Afghanistan and Iraq without maintaining large permanent troop presences.
5. Funding state and local programs, including primary, secondary and higher education, despite falling revenues.
It's notable that the courts have either nothing (e.g., item 4) or only marginal things to say about anything on this list. It's also clear that many of these items themselves include multiple important items, and the list isn't even complete. For example, it doesn't include domestic counter-terrorism or public health challenges (beyond matters of cost) such as responding to pandemics. Despite the fact that the courts will not block political action on these major issues of our day, non-judicial mechanisms frustrate efforts to act on the majoritarian will on most of these items.
One such non-judicial CMD is our system of campaign finance, which permits lobbyists for Wall Street, private health insurance firms, industries with sunk costs in high-pollution equipment, and arms manufacturers, among others, to exert outsize influence over these matters.
Another non-judicial CMD mechanism comprises super-majoritarian requirements--2/3 vote to raise taxes in California; 60 votes to break a filibuster in the Senate; the practice of allowing a single Senator to place a "hold" on a nomination; etc.--that permit small legislative minorities to block majority sentiment. The Senate itself is a gigantic CMD, insofar as it vastly over-represents residents of low-population states, which tend to be disproportionately agricultural and rural.
John Hart Ely, author of what is still the most influential book on constitutional interpretation, Democracy and Distrust, had a famous response to this sort of argument. To paraphrase from memory, he said something like this: We can point out until we're blue in the face that our system of representative democracy is not perfectly representative of popular will, but it's still more representative than the judiciary. I'll concede that, but it's only a response on issues where we're trying to determine whether judicial review is legitimate. Where the courts are largely out of the picture--as they are on our most important issues of the day--the comparative point has no bite. My point isn't that the elected branches are gridlocked and therefore the courts should step in; my point is simply that non-judicial CM mechanisms are blocking needed and likely popular options. E.g., there is consistent majority support for a "public option" as part of a health care reform package; yet we may not get one.
So, to quote another (less democratic) theorist, what is to be done? That's a topic for another day. For now, I'll conclude by noting the irony of any hand-wringing about the judicial CMD in the upcoming Sotomayor hearings: Some Republican Senators who are themselves using the CM features of the Senate to block the popular will on the really important issues will fret over the marginal influence Judge Sotomayor will have on second-order issues, if confirmed.
Posted by Mike Dorf