Counter-Majoritarian Myths

Ezra's guest blogger Scott (no, not Neil) has a good post and summary of the recent arguments over the democratic legitimacy of judicial review. Fascinating stuff really. His main point is focusing on how rarely the Supreme Court has actually acted against the wishes of the democratic majority.

As Mark Graber has noted, a generation of legal scholars discussed the Warren Court as if Goldwater won a landslide in 1964.
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To say that Roe v. Wade—which a majority of the public supports by a two-to-one margin, and has always supported—isn’t counter-majoritarian isn’t to say, ipso facto, that it was correctly decided. (I do believe that it was, but it requires an independent argument.) The most reprehensible parts of Dred Scott, which obviously nobody would defend, were clearly the majority position, North and South.

Of course they act against the wishes of the majority in many cases, but those tend to be more under the radar ones (federal workplace laws, anyone?), and there are a number of counter-majoritarian rulings by lower courts that just don't get reviewed by SCOTUS (ie, tacitly upheld). This doesn't separate them from any other federal bureaucracy though.

The deeper point is that, SCOTUS in any particular case is either democratic or it isn't. When it is majoritarian, it doesn't matter. Only in the cases where it is counter-majoritarian does it add anything to the workings of our government. Even if those cases are fewer than many believe, they are the entirety of the interesting set.