The Counter-Majoritarian Difficulty

Yale law professor Alexander Bickel wrote in his 1962 book The Least Dangerous Branch that the root difficulty is that judicial review is a counter-majoritarian force in our system: when the Supreme Court strikes down a law, it thwarts the will of the people's representatives. His title came from Alexander Hamilton's Federalist No. 78, which argued in 1788 that the judiciary, having neither force nor will but merely judgment, would be the least dangerous branch, and that judges enforcing the Constitution carry out the people's higher, enduring will over the temporary will of legislators.

Scholars have offered many responses. Footnote four of United States v. Carolene Products in 1938 suggested courts should look more closely at laws that restrict the political process or target discrete and insular minorities, and John Hart Ely developed that idea in Democracy and Distrust in 1980, arguing that judicial review is most justified when it reinforces representation. Political scientist Robert Dahl argued in 1957 that the Court is rarely out of step with national lawmaking majorities for long, because new appointments bring it back in line.

Others defend judicial review as protecting individual rights that should not depend on majority approval, or point out that legislatures themselves are imperfectly majoritarian because of gerrymandering, the Senate's design, and the filibuster. Bickel himself urged courts to use the passive virtues, avoiding unnecessary constitutional rulings. The question returns whenever the Court strikes down major laws or overrules precedent, with critics of a decision often citing the difficulty and its defenders citing the Constitution's limits on majorities.