A recent lecture in my online jurisprudence class explored a concept that I found to be very interesting and is a problem (for lack of a better term) in law that I hadn't yet considered until now. The concept is called the Countermajoritarian Difficulty and it concerns the Supreme Court's ability to exercise judicial review.
First, I thought to learn what exactly is meant by 'majoritarian' – what does it refer to exactly? The Encyclopedia of Democratic Thought edited by Paul Clarke and Joe Foweraker (427) defines majoritarianism as being "the doctrine or philosophy that majority rule should prevail in democratic decision-making." This seems to aptly apply to the grand ol' States; our popularly elected representatives are put into place by popular elections and therefore vote in their legislative bodies based on the principles and planks that got them elected....popularly.
It's fair to pause here and point out that there are certain things baked into the crust of the Constitution that keep the majority from walking all over the minority. For instance, the Senate is made up of 2 representatives from each state, thus being a way for each state, regardless of population, to have an equal vote in that senate. The House of Representatives, on the other hand, is fundamentally majoritarian. Another way the Constitution protects minorities is the principle of checks and balances, an example of which is the Presidential veto, which is a maneuver that the elected Leader of the Free World can use to stymie bills coming from Congress.
Now comes the 'countermajoritarian' part of the problem. The Supreme Court is an essential facet of the system of checks and balances set out in the US Constitution. SCOTUS's checking and balancing ability lies in their practice of ruling that laws and executive actions are unconstitutional and thus invalid. This is judicial review, established in the 1803 case of Marbury v. Madison. This principle, accepted as a valid power of the Supreme Court for over 200 years now, might actually be countermajoritarian. This is because SCOTUS is appointed by the President rather than elected by the people. Since the 9 judges aren't elected, popularly or not, they are essentially neither chosen by nor necessarily reflective of the majority.
Considering all of this, what makes it a 'difficulty?' According to Alexander Bickel, the man who coined the phrase 'countermajoritarian difficulty', "Policy choices....[are] best made by elected officials who [are] politically accountable and more likely to reflect public sentiment than [are] unelected justices" (qted. Graber 362).
This is ostensibly a fair point; why should unelected judges have the ability to review laws and executive actions without being able to suffer the political consequences of those actions? They don't have election cycles looming over their heads to keep them from making decisions that are incompatible with the electorate.
Should this just be chalked up to an irregularity in the way our system works? A quirk embedded in the system so that the majority doesn't overstep and trample the minority? Perhaps. History actually tells us that the Supreme Court justices have generally always sided with the popular sentiments of their time, sometimes being more true to it than the legislative branch (qted. Graber 362). So now we must consider if it's even a bad thing that SCOTUS has the power of judicial review – to be sure, the difficulty is not a question of whether or not it was ever 'bad' for the justices to be so endowed. It might not be bad, per se, granted that the high court has actually sided with the public on Constitutional issues on many occasions.
Perhaps this is an important point, then. It's noted by Steven Calabresi in his paper "Textualism and the Countermajoritarian Difficulty" (1386) that the Supreme Court, when it doesn't side with the majority (read: when it invalidates laws and executive actions), it's simply acting as a sort of lag. Since the President is the one that appoints the high court judges, they generally reflect the political and policy inclinations of their appointing President. Because of this, those judges will usually mirror the public sentiment, while the judges appointed from past presidents will generally reflect the political and policy inclinations of the President that appointed them, sometimes decades ago.
With the acknowledgment that there can be a bit of a lag in how SCOTUS rules on some cases and law, we can now better understand how much (or how little) of an impact they have in regard to their being unelected. Even though the majority may feel one way on a subject and the legislature reflects this by passing a law affirming those feelings, SCOTUS, with judicial review, may swoop in and invalidate that law because it doesn't jive with the Constitution.
Let's say not-so-hypothetically that the majority of Americans support the legalization of recreational marijuana use and so Congress passes a bill to legalize it. John Roberts and Co. can use judicial review to consider the constitutionality of the law and may invalidate it for various reasons. In the next 10 years, though, a few of the older justices might leave the bench and then be replaced by a President who has been elected by a reefer-friendly majority. Those justices, presumably being appointed as much for their political views as for their legal background, might then see the Constitution a little differently and a legalization law might then fly through Congress and underneath the President's stamp of approval quicker than Antonin Scalia can shake his jowls at the very thought.
All said, it seems that judicial review is a crucial part of our country's system of checks and balances and though it may not always result in the decisions that favor the will of the majority, it just takes a little patience for the right men and women to be appointed to see the way of the majority. The Countermajoritarian Difficulty, while premised in reasonable Constitutional concerns, is ultimately not a problem that threatens the integrity or accountability of our legal system.
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