Corinna Lain (University of Richmond – School of Law) has posted The Countermajoritarian Classics (and an Upside Down Theory of Judicial Review) on SSRN. Here is the abstract:
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Brown v. Board of Education. Engel v. Vitale. Miranda v. Arizona. Furman v. Georgia. Roe v. Wade. Within the academy, these countermajoritarian classics stand as a testament to the Supreme Court’s willingness to thwart the will of a national majority in the name of minority rights. Yet a historical examination of these cases reveals a dramatically different narrative, illustrating just how majoritarian even ostensibly countermajoritarian cases can be. Indeed, in several of these cases, the Court’s ruling was so majoritarian, so consistent with national public opinion, that it only looked countermajoritarian because the seemingly majoritarian stance of the democratically elected branches wasn’t. Considered in full historical context, the Court’s position was actually a better reflection of prevailing sentiment than that of the legislative and executive branches. The implications are striking. While most theories of judicial review see the Court’s countermajoritarian capacity as its unique institutional attribute, the classics show that sometimes just the opposite is true. Sometimes it is the democratically elected branches that are out of sync with majority will, and the Supreme Court that bridges the gap, turning the traditional understanding of the Court’s role on its head. The result is a distinctly majoritarian, upside-down theory of judicial review, one that recognizes the Court’s ability to be more majoritarian than the majoritarian branches, rather than less. Democracy never looked so undemocratic – nor, one could argue, has it ever worked so well.
Highly recommended.