Mitigating Mob Rule: Restoring the Supreme Court as a Barrier to Majority Tyranny

Abstract

In this essay, I show how, contrary to common knowledge, the countermajoritarian difficulty, perhaps the most widely discussed problem in American constitutional theory, gives rise to a United States Supreme Court that issues decisions in line with majoritarian preference. I then turn my attention to a critically important question that scholars have chronically overlooked: does a majoritarian Supreme Court present troubling ramifications? I suggest that it does, asserting that robust oversight of the majoritarian process is necessary to prevent abuse. Finally, I propose a novel reform geared toward solving the countermajoritarian difficulty and thereby bolstering the Supreme Court to provide a more substantive check on the democratic process––a referendum process through which the American public could overrule a Supreme Court decision provided that a majority of all eligible voters vote to overrule the Court . I contend, counter-intuitively to be sure, that this reform might grant the Court greater leeway to challenge majority opinion both more frequently and more effectively.The reform I propose, in keeping with the thrust of the paper, is, first and foremost, a theoretical one. I neither make an effort to investigate whether my reform might pass Congress, nor do I explore whether President Barack Obama might plausibly sign my reform into law. Questions of that nature lie far beyond the scope of this paper. Still, I deny that this renders my proposed reform solely an interesting academic exercise. A majoritarian Supreme Court results in a lawmaking process worryingly free of constraint. Therefore, casting about for ideas to empower the Supreme Court, however unfeasible they may seem today, presents a critical task.