ArtIII.S2.C1.10.3 Counter-Majoritarian Difficulty

Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

The Constitutional Avoidance Doctrine posits that unelected jurists should exercise caution in striking down laws on constitutional grounds. While Congress can amend statutes when it disagrees with the Supreme Court’s statutory interpretations, Congress has no recourse when it disagrees with the Court’s constitutional interpretations other than to amend the Constitution.1 Consequently, judicial review may frustrate the public “by foreclosing all democratic outlet for the deep passions [an] issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, [and] by continuing the imposition of a rigid national rule instead of allowing for regional differences.” 2 The problem posed by an unelected Supreme Court holding Congress’s laws to be unconstitutional and void has been described as the “counter-majoritarian difficulty.” 3

Because the Court relies on public goodwill to ensure its rulings have practical effect, the Court’s opinions must be principled so that the public respects the Court’s judgments, even when it disagrees with its conclusions. In short, the Supreme Court’s authority depends on political majorities being willing to abide by rulings counter to their interests. As the Court observed in Planned Parenthood v. Casey: “the Court’s power lies . . . in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands.” 4 Consequently, the Supreme Court must ensure the “peaceful coexistence of the counter-majoritarian implications of judicial review and the democratic principles upon which our Federal Government in the final analysis rests.” 5 In part to minimize this perceived counter-majoritarian difficulty, the Court developed the Constitutional Avoidance Doctrine to instruct federal courts on how to approach constitutional questions.

John Hart Ely, Democracy and Distrust, A Theory of Judicial Review 4–5 (1980) ( “[I]n non-constitutional contexts, the court’s decisions are subject to overrule or alteration by ordinary statute. The court is standing in for the legislature, and if it has done so in a way the legislature does not approve, it can soon be corrected. When a court invalidates an act of the political branches on constitutional grounds, however, it is overruling their judgment, and normally doing so in a way that is not subject to ‘correction’ by the ordinary lawmaking process. Thus the central function, and it is at the same time the central problem of judicial review: a body that is not elected or otherwise politically responsibly in any significant way is telling the people’s elected representatives that they cannot govern as they’d like.” ). back
See Planned Parenthood v. Casey, 505 U.S. 833, 1002 (1992) (Scalia, J., dissenting). back
Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 16–23 (1962). Bickel noted: W]hen the Supreme Court declares unconstitutional a legislative act or the action of an elected executive, it thwarts the will of representatives of the actual people of the here and now; it exercises control, not on behalf of the prevailing majority, but against it. . . . “[I]t is the reason the charge can be made that judicial review is undemocratic.” Id. at 16–17. back
Casey, 505 U.S. at 865 (plurality opinion). back
United States v. Richardson, 418 U.S. 166, 192 (1974) (Powell, J., concurring). back