The Judiciary and Popular Will

By Mike Dorf

On Friday, I'll be presenting a paper at a conference at the University of Pennsylvania (sponsored by the U Penn Journal of ConstitutionalLaw) on The Judiciary and Popular Will.  The Symposium is built around (though not limited to) themes discussed in Barry Friedman's terrific new book, The Will of the People.  Readers who have followed Friedman's academic work over the last decade and a half will see in the book the development of points he made in a series of articles tracing the history of the countermajoritarian difficulty (a clumsy phrase coined by Alexander Bickel to refer to the power of American courts to invalidate as unconstitutional laws passed by majoritarian bodies).  But the book is not just a re-packaging of a collection of articles.  It is a lucid and powerful narrative.

What's odd about Friedman's book--or what's odd about the necessity of the book--is that his core point has been known for many years: He shows how the Supreme Court is not in fact a strongly countermajoritarian body.  What's distinctive about The Will of the People is Friedman's demonstration of how the criticisms of judicial review have evolved over time.  It's also chock full of interesting historical analysis.  I learned a great deal about matters that I thought I knew quite a bit about.

Okay, so that's my plug for the book.  So what will I say at the conference?  Below is the abstract of my paper (and truth be told, all I've written so far is this abstract and an Introduction, with the rest taking the form of fragmentary notes, to be polished over the next couple of months):

Recent scholarship in political science and law challenges the view that judicial review in the United States poses what Alexander Bickel famously called the “countermajoritarian difficulty.”  Although courts do regularly invalidate state and federal action on constitutional grounds, they rarely depart substantially from the median of public opinion.  When they do so depart, if public opinion does not eventually come in line with the judicial view, constitutional amendment, changes in judicial personnel, and/or changes in judicial doctrine typically bring judicial understandings closer to public opinion.  But if the modesty of courts dissolves Bickel’s worry, it raises a distinct one: Are courts that roughly follow public opinion capable of protecting minority rights against majoritarian excesses?  Do American courts, in other words, have a “majoritarian difficulty?”  This Essay examines that question from both an interpretive and an institutional perspective.  It first asks whether there is a normatively attractive account of the practice of judicial review that takes account of the Court’s inability to act in a strongly countermajoritarian fashion.  After highlighting difficulties with three of the leading approaches to constitutional interpretation-- representation-reinforcement, originalism, and living Constitutionalism--the Essay concludes that accounts of the Court as a kind of third legislative chamber fit best with its majoritarian bias.  This conclusion has implications for the design of constitutional courts.  The Essay tentatively argues that distinctly constitutional courts staffed by personnel that include some non-lawyers have advantages over supreme courts that include constitutional rights cases as part of more wide-ranging dockets, even as it notes that this approach is not readily adaptable to the American system of diffuse judicial review.

I'll report back on the conference early next week.