Reconsidering Judicial Supremacy: From the Counter-Majoritarian Difficulty to Constitutional Transformations

Abstract

The counter-majoritarian difficulty has for many years framed constitutional scholarship for both law professors and political sci entists studying judicial review. Unfortunately, shared attention has not led to shared insights, as these scholars have remained isolated in their respective academies. Recently scholars have begun targeting this disciplinary barrier, and questioning whether developing norms of judicial supremacy have importantly raised the stakes of determining the legitimacy of courts setting policy in a democracy. This article proposes a new approach to the study of judicial review aimed at understanding systemic change rather than institutional legitimacy, using recent concerns over the drift from judicial review to judicial supremacy as a point of departure for study. I recommend, to both normative and positive scholars, a new and integrated focus on the relationship between judicial policymaking and wider transformations of the constitutional order that have previously been obscured by orienting constitutional scholarship around the counter-majoritarian difficulty. Academic discussion of judicial review has long been oriented around the counter-majoritarian diffi culty. The counter-majoritarian difficulty questions whether the unique properties of judicial decision-making, which include constitutionally prescribed insulation from public influence, are consistent with America's democratic commitments. Unfortunately this academic discussion has rarely crossed the disciplinary divide between students of constitutional theory and students of constitutional poli tics. Two separate and almost entirely independent tracks of scholarship have been established to meet the challenge of the counter-majoritarian difficulty, resulting in distinct normative and positive investigations of whether judicial review offers sufficient benefits to offset its democratic deficiencies, or whether in its practice it actually leads to undemocratic policy choices. In recent years, efforts have increased to infuse the study of law with politics and vice versa.1 At the same time, new urgency has been brought to the study of the counter majoritarian difficulty for many in the legal academy, who perceive an increase in judicial imperialism. The Supreme Court has lately ratcheted up the rhetoric of judicial supremacy and has widened the ambit of cases coming under its review. This article examines the intersection of this rising academic concern over judicial supremacy with the growing calls for interdisciplinary dialogue. Rather than treat recent concern over judicial imperialism as an amplification of the counter-majoritarian difficulty that simply raises the stakes of being lost in the thicket of