The Supreme Court, Factions, and the Counter-Majoritarian Difficulty

Abstract

In merging the theories and assumptions of the regime politics and political party literatures, this article identifies a rare but important type of “counter-majoritarian difficulty,” that is, a situation where the Supreme Court makes policy against the political will or preferences of a majority. When the Court rules in favor of the dominant political party’s preferences on issues that are of secondary importance to the party, the Court can paradoxically trigger a cross-partisan alliance built around the very premise of undermining the judiciary. Using case studies from the mature New Deal—including communism, school prayer, busing, and abortion—this article shows how non-leading factions in the Democratic Party allied with Republicans to form grassroots, congressional, and electoral majorities. These three majorities, inadvertently created by the Court, successfully obstructed implementation, curbed the Court, and helped realign the party system, respectively.