The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary

Theoretical and descriptive studies of the Supreme Court exhibit a curious parallel. Both usually begin from the premise that judicial review is “a deviant institution in a democratic society.” Much normative work claims that independent judicial policymaking is rarely legitimate in a democracy because, with few exceptions, elected officials rather than appointed judges should resolve social controversies. In a frequently cited passage, Alexander Bickel asserts that the Supreme Court is “a counter-majoritarian force” in our system of government. Much empirical work, by comparison, insists that independent judicial policymaking seldom takes place in a democracy because, with few exceptions, judges appointed and confirmed by elected officials sustain whatever social policies are enacted by the dominant national coalition. Robert Dahl observes that it is “unrealistic to suppose that a Court whose members are recruited in the fashion of Supreme Court justices would long hold to norms of Right or Justice substantially at odds with the rest of the political elite.”