Democracy-Promoting Judicial Review in a Two-Party System: Dealing With Second-Order Preferences

Abstract

The tension between judicial review and democratic principles remains the most significant problem in modern constitutional theory. Yet this tension may be resolved in the context of “political stalemate.” Political stalemate arises when both parties in a two-party system find it electorally advantageous to ignore a given political issue, even when majorities favor reform on that issue. This can occur when (a) majorities favor reform as only a secondary preference, and (b) a swing-voting minority exists which has intense preferences against reform. When political stalemate materializes, judicial activism toward reform serves democratic ends primarily by breaking the stalemate and encouraging open contestation on the issue. These are functions that electoral mechanisms simply cannot perform, and they point toward a democratic defense of the Supreme Court's decisions in Griswold v. Connecticut and Lawrence v. Texas.