By Anonymous, October 13, 2010 in Outside the Classroom
In 1961, Yale law professor Alexander Bickel wrote what would become the dominant work of constitutional theory for the next half century. Borrowing a phrase from Alexander Hamilton in Federalist 78, Bickel’s book, The Least Danger Branch, argued that in a democratic society - a society in which decision-making is made through institutions that aggregate the preferences of the majority - popular sovereignty will dictate that one have some sort of rationale as to why judicial review is legitimate. Bickel’s book arrived on the scene just as the Warren Court was trying to rebuild its legitimacy - in the face of challenges to its decisions in Brown v. Board of Education (1954/1955) and Cooper v. Aaron (1958) – and today it is hard not to read his book in the light of that history. But whatever the historical context within which Bickel wrote his book, and whatever his reasons for writing it, the notion that the Supreme Court has a counter-majoritarian difficulty that poses a fundamental challenge to the legitimacy of Court has remained with us.
But is such a view right? I would like to briefly suggest that seeing the Court through the lens of the counter-majoritarian difficulty distorts its role in American government and history. Further, there may be a fundamental conflict between the moral intuitions that sit behind notions like the rule of law and democracy, such that looking at the Court from a counter-majoritarian point of view, leads us to focus on the wrong set of issues when we try to evaluate its role in American government. So, I'll briefly say something about that too.
The first thing to notice about the counter-majoritarian difficulty is that it takes a proceduralist, majoritarian, and interest group pluralist point of view toward the notion of democracy. It is because of this picture of what a democratic society is and should be that there is thought to be a counter-majoritarian difficulty in the first place. From this point of view, extra-proceduralist values – values about the dignity of human beings, or substantive values associated with higher law, for instance – operate independent of democratic government, and thus of themselves lack democratic legitimacy. And so, to the extent that judges draw on these extra-proceduralist values to overrule democratic majorities, they have a counter-majoritarian difficulty.
Yet if the relevant issue is democracy, not majoritarianism, the it's important to note that democracy need not be thought of along these lines. Democracy, most broadly defined, is a system of political legitimacy where decisions are collectively binding if the arrangements that give rise to them give equal consideration to the interests of each person bound by the decision. But thought of thus, “giving equal consideration to the interests of each person bound by the decision” in no way entails that government simply aggregate the given interests of its citizens.
Indeed, as James Madison realized – following the natural law theory of Grotius, Pufendorf and Locke – human beings have an unsociable social nature; and it is the aim of government to filter these unsociable and at times irrational passions, such that the sociable nature of humanity finds common cause. As he says in Federalists 55: “as there is a degree of depravity in mankind, which requires a certain degree of circumspection and distrust, so there are other qualities in human nature, which justify a certain portion of esteem and confidence.”
Madison realized that the unsociable sociability of human nature required not legislative omnipotence – which, as he noted in his Vices of the Political System of the United States, caused multiplicity, mutability, and injustice in laws (the last being the worst, because it undermined the very foundation of republican government, by showing that the majority who rule are not the safest guardians of public good and private right). Instead, what was required was a system of government that would, as he says in Federalist 10, “refine and enlarge the public view…”
The complicated system of checks and balances - with sovereignty divided between the states and the federal government, and the three separate but equal branches of government - were each intended, from the Madisonian point of view, to filter the passions and interests of individuals and groups, so that they might find, what Woodrow Wilson called, “common counsel.” This process of coming to one mind, so to speak, within a democracy was not a process of aggregating individual preferences. It is not, Wilson said, "a sum in addition, counting heads. It is compound out of many views in actual contact; is a living thing made out of the vital substance of many minds, many personalities, many experiences.” Democracy thus may be thought of as a culture, a history, of free institutions, which allows for the equal consideration of its citizens’ points of view and interests, so that they find common cause with one another. Thought of this way, the Supreme Court may be anti-majoritarian, but it need not be anti-democratic. Indeed, the Court may help filter and structure the process whereby a democratic society finds “common counsel.” To take this story further – the story of how the Supreme Court fits within the Madisonian republic – would require more space than we have here. But the important point to see is how narrow and limiting the view of democracy and American government is which the counter-majoritarian difficulty presupposes.
Still, there is a further and perhaps more fundamental problem with using the counter-majoritarian difficulty to frame the role of the Supreme Court in American politics and history. The fundamental normative aim of political science – and ideally of public policy – is to establish good government. Yet good government may require more than just democracy. Thus, it may be best to say that while democracy is a necessary condition, it may not be a sufficient one for good government, and that human rights and the rule of law should in some situations limit presumptive claims to democratic legitimacy. And yet if that is in fact our situation, then we may simply be forced to accept the wisdom of Isaiah Berlin: because we have plural and conflicting political values, we may be forced to choose between them. If so, and the cases are very hard ones, then we will have to learn to live with loss, regret, and perhaps even tragedy. From this point of view, to say the Supreme Court has a counter-majoritarian difficulty is simply be to focus on the wrong set of issues. Instead, we ought to acknowledge the plural and conflicting nature of the values our political tradition has given us, and own up to the fact that difficult trade-offs will have to be made.