dialogue and judicial review

DIALOGUE AND AND JUDICIAL REVIEW DIALOGUE Barry Friedman* Friedman * TABLE OF CONTENTS

INTRODUCTION •••••.••••••••••••••..••••••..••••••.•••••••• ............................................. INTRODUCTION I. MAJORITARIAN MAJORITARIAN COURTS?.............................. COURTS? ...............................

Majoritarianism........................... ........................... A. Defining Defining Majoritarianism B. Assessing Majoritarianism ........................... Majoritarianism ........................... 1. Substance Substance Majoritarianism Majoritarianism........................ 1. ...................... a. Sources ...................................... a. Sources...................................... ...................................... b. Results Results...................................... 2. Process Process Majoritarianism Majoritarianism......................... ......................... Majoritarianism.................. C. The Difficulty with Majoritarianism..................

578 586 586 586 586 590 590 590 590 590 590 607 609 614 614

UNDERLYING II. THE FALLACIES FALLACIES UNDERLYING

THE COUNTERMAJORrrARAN DIFFICULTY COUNTERMAJORITARIAN DIFFICULTY................... ••••••. •••••. ••••

A. The Framers' Constitution and and Our Own ............ ............ Framers' Constitution 1. The Framers' Framers' Constitution Constitution ... ....................... 1.. .................... 2. The Rise of of Majoritarianism Majoritarianism ..................... .... . . . . . . . . . . . . . . . . . 3 .... .. And of Judicial JudicialReview Review....................... ..................... 3. 4. Reprise: The Framers' Constitution .............. .............. 4. Framers' Constitution 5. All Balances?.................... All Checks and No Balances? .................... B. The Faulty Faulty Premises Premises of the Countermajoritarian Countermajoritarian Difficulty ............................................ .......................................... ElectoralAccountability Accountability ......................... ......................... 1. Electoral a. assumption of aa "majority"........ a. The faulty assumption ........ Contrast: the idea ............ b. Contrast: idea of constituency ............ JudicialInterference ............................ 2. Judicial Interference ............................ a. Faulty assumption ofjudicial a. The Faulty assumption of judicial ':finality"... ~'finality" . . . b. Contrast: Contrast: the twin ideas of spaciousness ideas spaciousness and dynamism .................................... ..... : . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Vanderbilt University. A.B. 1978, 1978, University of Chicago; J.D. 1982, 1982, •* Professor Professor of of Law, Law, Vanderbilt University. A.B. University of Chicago; J.D. Georgetown. Georgetown. -- Ed. I would like to thank the many many colleagues colleagues who read early drafts of this article or or discussed discussed sections of it with me at length. With grave fear that I have omitted somesomeone, my gratitude Althouse, Snsan Susan Bandes, Rebecca gratitude extends to Ann Althonse, Rebecca Brown, Brown, Robert Robert Burt, Erwin Erwin Chemerinsky, Michael Daneker, Neal Devins, Dick Fallon, Dan Farber, Mike Gerhardt, Linda Linda Helyar, Vicki Jackson, Jackson, Stacey Stacey Jarrell, Jason Johnston, Johnston, Larry Larry Kramer, Tom Tom Krattenmaker, Tom Helyar, Vicki Jarrell, Jason McCoy, Martha Martha Minow, Minow, Bob Bob Pitofsky, Pitofsky, Bob Rasmussen, Rasmussen, Glenn Reynolds, Gerry Gerry Rosenberg, Mike Seidman, Seidman, Suzanna Suzanna Sherry, Mark Mark Tushnet, Tnshnet, Don Welch, Steve Winter, and Nick Zeppos. I am grateful to the Vanderbilt University generous support, and to the University Research Council Council for their generons Vanderbilt Works in Progress Progress Program for letting me air parts of this. I also would like to thank Vanderbilt Works Program for Cristina Chou, Jean Eliason, Eliason, Kristy McAllister, Patrick McDowell, and Mett Miller for research research assistance. Special thanks to Stacey Stacey Jarrell, Jarrell, who was steadfast throughout.

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III. III.

"DIFFICULTY" TO "DIALOGUE": THE JUDICIAL FROM "DIFFICULTY" ROLE IN CONSTITUTIONAL CONSTITUTIONAL INTERPRETATION INTERPRETATION............ ••••••••••

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A. Dialogue............................. A. The System of Dialogue. ............................ B. An Example: The Dialogue Dialogue About Abortion Abortion........... ......... Courts .................................. C. The Role of Courts .........................

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D. Dialogue Constraint............................ Dialogue and Constraint............................

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IV. CONCLUSION: CONCLUSION: THE LITTLE PRINCE AND THE COURT ... PRINCE AND COURT •••

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INTRODUCTION INTRODUCTION

I'll give you a hint. Contradictions Whenever you Contradictions do not exist. Whenever think that you are facing a contradiction, your check premises. You 1 is wrong. will will find that one of them is wrong. I

"countermajoritarian difficulty" We have been haunted by the "countermajoritarian difficulty" far

too long. At least since Alexander Least Dangerous Alexander Bickel's The Least Dangerous 2 constitutional scholars have been Branch, preoccupied, indeed Branch,2 constitutional scholars preoccupied, indeed one might say obsessed, by the perceived perceived necessity of legitimizing judicial endeavor has consumed consumed the academy academy and, as this article review. 33 The endeavor will argue, distracted us from recognizing and studying the constitutional system that we do enjoy. over The Constitution of the United States has been in force for over two hundred years, and judicial review has been a part part of the working Constitution Constitution for almost all of that time. 44 Granted, the nature of judicial review has evolved over the course of our constitutional constitutional history, as have many other constitutionalism. But judicial other aspects of American constitutionalism. review has long been an integral part of our system of government, for better or for worse. In today's workaday workaday political political world, judicial judicial review seems both firmly entrenched and fully accepted. entrenched 1. AYN RAND, ATLAS SHRUGGED 199 (1957). 1. 199 (1957). 2. M. BICKEL, BIcKEL, THE THE LEAST DANGEROUS 2. ALEXANDER ALExANDER M. DANGEROUS BRANCH BRANCH (1962). (1962). Although the countermajoritarian difficulty obviously predated predated Bickel, Bickel, see James B. Thayer, Thayer, The Origin Origin and countermajoritarian difficulty Scope of the American American Doctrine ConstitutionalLaw, Law, 77lIARv. HARv. L. REV. modem Doctrine of Constitutional REv. 129 (1893), (1893), the modern obsession countermajoritarian difficulty certainly dates to his discussion. obsession with the countermajoritarian 3. See Bruce Bruce A. A. Ackerman, Ackerman, The Storrs Constitution, 93 YALE L.J. 3. See Storrs Lectures: Lectures: Discovering Discovering the Constitution. 93 YALE 1013, 1016 1016 (1984) (1984) ("Hardly ("Hardly aa year professor announcing announcing that he 1013, year goes by without some learned learned professor has discovered the final solution solution to to the countermajoritarian difficulty, difficulty, or, even even more darkly, darkly, that that has discovered the final the countermajoritarian the countermajoritarian Erwin Chemerinsky, countermajoritarian difficulty is insoluble."); Erwin Chemerinsky, Foreword: Foreword: The Vanishing Constitution, 103 103 HARV. HARV. L. REv. 43, 46 (1989) (noting that that scholarly scholarly literature about judicial Constitution. (1989) (noting literature about review countermajoritarian difficulty difficulty for several decades). decades). review has been dominated by the countermajoritarian 4. See Marbury Marbury v. Madison, Sandford, Madison, 55 U.S. (1 (1 Cranch) 137 (1803). (1803). Not until Dred Scott v. Sandford, 60 U.s. U.S. (19 (19 How.) 393 (1856), (1856), did the Court strike down another act of Congress, but the Court 60 sanctioned judicial of, and state actions during that time. See. See, e.g., e.g., sanctioned judicial review review of, and struck struck down many, state McCulloch v. Maryland, 17 U.S. (4 Wheat.) Wheat.) 316 (1819); Trustees of Dartmouth McCulloch (1819); Trustees Dartmouth College v. Woodward, (1 Wheat.) Woodward, 17 U.S. U.S. (4 Wheat.) 518 (1819); (1819); Martin Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816). Certainly Certainly "constitutional (1816). "constitutional interpretation interpretation and enforcement enforcement have become [the federal courts'] Idea ofa Case, Case, 42 STAN. STAN. L. REv. War." Susan Bandes, The Idea courts'] primary primary role since the Civil War." 281-82 (1990). (1990). 227, 281·82


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Some might find it more than a little odd, therefore, that within the academy judicial review has been suffering suffering a crisis of legitimacy for at least the past quarter-century. Nonetheless, scholarly work after scholarly scholarly work dealing with constitutional constitutional law and the Supreme Court begins by recounting recounting in some fashion the problem of judicial legitimacy. macy.s5 Almost inevitably this recounting is a prelude to a normative prescription prescription regarding the role of courts - and particularly of the 6 Supreme problem to to rest. rest. 6 Supreme Court - that seeks to put the legitimacy problem Dangerous Bickel certainly laid the groundwork. In The Least Dangerous Branch "The root difficulty is that judicial Branch he put the problem bluntly: "The review is a counter-majoritarian system."'7 For Bickel, counter-majoritarian force in our system."7 and virtually ~nd virtually everyone who followed him, the bedrock premise premise of American American political life is democracy, by which Bickel meant meant some sort of system of governance people."8 governance representative representative of the will of the people. When courts exercise the power of judicial judicial review review to overturn overturn decisions made by other branches branches of government, their acts appear appear to conrepresentative governance. 99 Thus, flict with the bedrock premise of representative concluded of concluded Bickel - and for all its familiarity the startling nature of "nothing... the conclusion cannot cannot be avoided avoided - "nothing ... can alter the essential reality that judicial deviant institution in the American American judicial review is a deviant 0 democracy." 10 democracy."' Bickel's preoccupied all Bickel's conclusion set him off on a search that has preoccupied of us who walk in his footsteps - to define a normative theory of judicial judicial review that somehow can reconcile reconcile the role of judicial review with its apparently character. 1 apparently undemocratic, and thus deviant, character.l1 Bickel set out to resolve the countermajoritarian countermajoritarian difficulty by defining defining a function for courts that rested on their ability to define enduring 5. eg., PHILIP BOBBITr, 5. See, e.g., BOBBrIT, CONSTITUTIONAL CoNSTITUTIONAL FATE 3-5 (1982); (1982); JOHN JOHN HART ELY, ELY, DEMOCDEMOCAND DISTRUST: (1980); MICHAEL J.PERRY, . RACY RACY AND DISrRUST: A THEORY THEORY OF JUDICIAL REVIEW REVIEW 11-12 (1980); MICHAEL J. CONSTITUTION, THE CoURTS, COURTS, AND AND HUMAN RIGHTS RIGHTS ix, 1-4, 9 (1982). (1982). THE CoNSTITUTION, 6. All All of the authors lesser authors in the works cited supra supra note 5 pursue this end to a greater greater or lesser degree. 7. BICKEL, supra supra note 2, at 16. id. at 16-23; JESSE H. CHOPER, REVIEW AND THE NATIONAL POLITICAL 8. See id. CHOPER, JUDICIAL REVIEW POLmCAL PROCESS: RECONSIDERATION OF THE ROLE OF THE SUPREME PROCESS: A FUNCTIONAL FuNCTIONAL RECONSIDERATION SUPREME COURT 4-6 4-6 also ELY, supra supra note 5, at 5; PERRY, supra (1980); see also supra note 5, at 9-10. 9-10. Some scholars seek, as I do, to integrate judicial judicial review, but usually also by way of reconciling judicial judicial review review with with majoritarian eg., Chemerinsky, Chemerinsky, supra Chemerinsky majoritarian democratic concerns. See, e.g., supra note 3, 3, at 74-77. 74-77. Chemerinsky argues that democracy majoritarianism and democracy does not require pure pure majoritarianism and that our system was designed designed in many ways to avoid avoid purely majoritarian majoritarian outcomes. 9. BICKEL, BICKEL, supra supra note 2, at 16-17. 16-17. Id. at 18 (emphasis 10. ld. (emphasis added). 11. 11. See BICKEL, supra supra note 2, at 23-24. For commentary commentary on Bickel's view of judicial review, review, Philosophyof Prudence 1573Kronman, Alexander Bickel's Philosophy Prudence, 94 YALE L.J. 1567, 1573see Anthony T. Kronman, Kronman argues that Bickel's "deviant institution" 90 (1985). (1985). Kronman Bickel's "deviant institution" discussion discussion only serves as a startspecific question of what role courts should perform. Id. 1574-75. ing point for the more specific ld. at 1574-75.


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values and principles that stood at risk in the immediacy of the everyday political political process but that courts, insulated from electoral politics, 12 Ultimately, however, could Bickel seemed to reccould define and protect. 12 13 Since ognize it.13 ognize his own failure to resolve the problem problem as he put it. Bickel, others have offered numerous diverse theories in attempt after forcefully. 14 stated so attempt problem Bickel stated so forcefu1ly,l4 attempt at putting to rest the problem This article does not seek to provide provide an overarching overarching normative normative theory of judicial review. Although captivated by the problem Although captivated problem since my early exposure to it, and certainly certainly no less interested interested than those who have preceded preceded me in offering some solution, I have run into a stumbling block of insuperable insuperable difficulty. My difficulty is that the descriptive starting ground for all such theories does not appear appear to me to describe describe accurately accurately our constitutional constitutional system. Absent that familiar descriptive descriptive firmament, however, the normative normative task becomes an uncertain one at best. This article argues that most normative normative legal scholarship regarding descriptively inaccurate foundathe role of judicial review rests upon a descriptively tion. The goal of this article is to redescribe redescribe the landscape of American constitutionalism constitutionalism in a manner vastly different than most most normative scholarship. At times this article slips across the line into normative scholarship. prescription, prescription, but by and large the task is descriptive. The idea is to clear the way so that later normative work can proceed against against the backdrop of a far more accurate understanding understanding of the system of Amerconstitutionalism. ican constitutionalism. The theory of this article - if one can can call a largely descriptive endeavor endeavor a theory -- is that the process process of constitutional constitutional interpretation that actually accountable (and thus actually occurs does not set electorally accountable government against unaccountable unaccountable (and thus illegitimate) legitimate) government courts. Rather, the everyday process of constitutional interpretation interpretation government: executive, legislative, and integrates all three branches branches of government: judicial.1IS5 Our Constitution interpreted on a daily basis through an Constitution is interpreted supra note 2, at 23-33. 12. See BICKEL, BICKEL, supra 23-33. 13. 13. See ELY, supra supra note 5, at 71 (explaining that Bickel gradually gradually came to realize that there was no consensus value-imposition role and that members members of the consensus upon which to rest a judicial value-imposition Court Court were simply imposing personal personal values (citing ALEXANDER ALEXANDER M. BICKEL, BICKEL, THE MORALITY MORALITY OF CONSENT [hereinafter BICKEL, CONSENT]; CoNSENT 3-5 (1975) (1975) [hereinafter CONSENT]; ALEXANDER ALEXANDER M. BICKEL, THr THE SUPREME AND THE IDEA SUPREME COURT AND IDEA OF PROGRESS PROGRESS 177 177 (1970) (1970) [hereinafter BICKEL, PROGRESS])). PROGRESS])). 14. See, See, e.g., eg., BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991); ELY, supra supra note BRUCE ACKERMAN, FOUNDATIONS (1991); 5; PERRY, supra note 5. PERRY, supra 5. 15. ConstitutionalAdjudication Adjudication and the Indeterminate 15. See Stephen L. Carter, Constitutional Indeterminate Text: A PrePreliminary an Imperftct Imperfect Muddle, liminary Defense of an Muddle, 94 YALE YALE L.J. 821, 866 (1985) (1985) (arguing that the Supreme "dynamic and interacting Supreme Court's role must be assessed within our "dynamic interacting and functioning functioning governmental system"). system"). governmental


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elaborate All segments of society particielaborate dialogue as to its meaning. 16 All 17 in this constitutional interpretive pate patel' constitutional interpretive dialogue, but courts play their their own unique role. Courts serve to facilitate and mold the national diaCourts 8 logue concerning Constitution,' particularly particularly but but concerning the meaning of the Constitution,18 not exclusively with regard to the meaning of our fundamental fundamental rights. This article provides a descriptive framework framework that is free from the constraints countermajoritarian difficulty for evaluating judicial constraints of the countermajoritarian activity. The article article describes what courts actually do and how they actually operate in our constitutional constitutional system. This dialogic dialogic descrip19 The description description tion integrates integrates courts, rather than alienating them. theni. 19 . legitimates legitimates courts only by explaining that the never-ending never-ending attempts at legitimation are pointless and distract us from more practical practical and important questions. Like all the other segments of society, courts sim20 political life. in American remain, participants participants in American political life.20 ply are, and will remain, Ironically, in fact, courts seem to participate participate with a good deal more academy to one side) than than the other other popular approval approval (the views of the academy branches of government.2211 This article article describes an America America in which branches courts are a vital functioning part of political political discourse, not some bastard child standing aloof from legitimate legitimate political dialogue. This article proceeds proceeds in three separate parts. Parts I and II argue that the very premises of the countermajoritarian countermajoritarian difficulty are faulty. Part I challenges the basic notion that courts are countermajoritarian. countermajoritarian. Part II rejects the underlying premises premises of the countermajoritarian countermajoritarian ar16. This dialogue is, in part, similar to much of the modeling being done concerning the Supreme Court's and Congress' Congress' interaction See, e.g., eg., WilSupreme interaction in the area of statutory construction. See, 1am Playingthe Court/Congress/President Court/Congress/PresidentCivil Civil Rights liam N. Eskridge, Jr., Reneging on History? History? Playing Game, Jr. & &John Making the Deal (1991); William William N. Eskridge, Jr. John Ferejohn, Making Game, 79 CAL. L. REv. 613 (1991); Stick- Enforcing Enforcing the Original Structureof of Lawmaking in the Modern Modem Regulatory Regulatory Stick: Original Constitutional Constitutional Structure State, 8 J.L. EcON. ECON. & ORGANIZATION 165 (1991); (1991); John Ferejohn State, & ORGANIZATION Ferejohn & & Barry Weingast, Limitation Limitation Statutes: Strategic StrategicStatutory GEo. L.J. 565 (1992). of Statutes: Statutory Interpretation, Interpretation, 80 GEO. 17. See See BOBBrrT, supranote 5, 5,at 185 ("All 17. BOBBl'IT, supra ("All constitutional constitutional actors participate participate in creating creating constitutional stitutional decisions of principally expressive expressive significance."). significance."). DemocraticCharacter HARV. L. REv. 18. See Eugene V. Rostow, The Democratic Character ofJudicial Judicial Review, 66 HARV. REv. 193, 208 208 (1952) (1952) (ca11ing (calling Supreme Court Court Justices "teachers "teachers in in aa vital national seminar"). 193, vital national Success, for me, would be be a recasting of the way we describe 19. Success, describe and study the role of courts courts in society. The majoritarian-countermajoritarian majoritarian-countermajoritarian debate is descriptively descriptively inaccurate, and it unnecunnecessarily and inappropriately ought judicial legitimacy. We ought inappropriately focuses discussion on the question of judicial to view courts as equal partners in the American American constitutional constitutional process, different in their own way, but certainly certainly not illegitimate. Once we get beyond the majoritarian-countermajoritarian majoritarian-countermajoritarian dichotomy dichotomy we are likely to find courts in some ways more like the rest of government than we thought, and different in ways we failed to consider. See MARTIN SHAPIRO, FREEDOM OF FREEDOM OF SPEECH: THE SUPREME COURT AND AND JUDICIAL RviEw REVIEW 41-44 (1966); (1966); Chemerinsky, supra supra note 3, at 77-83. This, in tum, turn, can only help advance our knowledge of how courts operate and free 3, us to make a sensible stab at normative regarding how they ought to operate. normative questions regarding 20. Cf Girardeau A. Spann, Pure Politics,88 MICH. L. REv. 1971, 1971, 1992 (1990) 20. Cj. Pure Politics, (1990) (arguing that minorities "distracted" by whether the system is fair; fair, "[t]he "[t]he process simply works minoriti~ should not be "distracted" the way it works"). works"). 21. See infra notes notes 234-35 and accompanying 21. accompanying text.


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gument. Part III is a redescription redescription of the landscape of American American constitutionalism, of, and stitutionalism, one in which courts are seen as promoters of, participants in, a national dialogue about the meaning participants meaning of the Constitution. In Part I, I argue, contrary contrary to Bickel and others, that courts are not systematically less majoritarian systematically majoritarian than the political branches of govermnent. "majoritarian" is so important, this Part suggests, ernment. If being "majoritarian" then courts are majoritarian majoritarian too. Part I begins by establishing some measures measur~ of majoritarianism majoritarianism - such as polling data, the sources of judicial constitutional interpretation, and the process of selecting selecting judges - and then examines examines those measures measures to prove that courts are not systematically systematically less majoritarian majoritarian than the political political branches. This argument argument concededly concededly is made with tongue partially in cheek: many undoubtedly undoubtedly would dismiss as fanciful the claim that courts are not not less majoritarian than, say, Congress. But, aside from the powerful evidence ultimately argue that, if the conevidence to the contrary contrary in Part I, I ultimately clusion that courts are "majoritarian" "majoritarian" seems troubling, perhaps perhaps it is because majoritarianism is sufficiently sufficiently incoherent incoherent because the entire concept of majoritarianism that it cannot serve as a useful basis for comparing courts to other cannot comparing other governmental governmental actors. countermajoritarian difdifPart II proceeds proceeds to the conclusion conclusion that the countermajoritarian ficulty itself is built upon faulty premises and thus fails as an accurate premises description American constitutionalism. First, Part II argues that description of American neither majoritarian is majoritarian government nor judicial judicial review as we know it is necessarily necessarily what the Framers had in mind. Nonetheless, the two have matured together, checking checking and balancing balancing one another, consistent consistent with the Framers' broad theoretical theoretical design for our Constitution. Constitution. Second, Part II challenges challenges two fundamental premises of the countermajoritarian countermajoritarian difficulty, premises that seem seem to lie at the bottom bottom of virtually all constitutional scholarship scholarship regarding the role of courts and judicial judicial review. The first premise is that American American constitutionalism is founded first and foremost on, to use Michael Perry's Perry's phrase, "electorally accountable policymaking."22 policymaking. '22 Electorally Electorally accountable "electorally accountable policymaking policymaking means that the people make decisions of governance, accountable representaelectorally accountable either by direct vote or through electorally 23 tives. The second premise is that courts, through the exercise of judicial review, depart in some significant way from the principles principles underlying underlying the first premise and thus must be justified, or legitimated, by some principle that reconciles reconciles the apparently conflicting conflicting institu22. supra note 5, at 4; see also ELY, supra 22. PERRY, PERRY, supra supra note 5, at 4-7. 23. PERRY, supra supra note 5, 5, at 3-4. Perry draws his definition definition from the work of various political'scientists and philosophers. See id. id at 3-4 & ical'scientists & n.16.


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24 Part ions of democratic tions democratic governance governance and and judicial judicial review. review.24 Part II demondemonpremises rests rests on a highly contestable contestable strates that each each of these premises strates assumption. assumption. electorally accountable accountable decisionmaking decisionmaking assumes assumes The premise premise of electorally The is not. will, when there majority a thing as an identifiable there will, when there is such such thing as an identifiable The premise premise of ofjudicial judicial interference interference assumes assumes that judicial judicial decisions decisions are when they they are not. Part II II looks to set aside these these faulty assumpfinal, when replacing them them with three actual actual facets of our constitutional constitutional systions, replacing tem - constituency the constitutional constitutional constituency representation, spaciousness spaciousness of the text, and the dynamic dynamic nature of constitutional constitutional interpretation interpretation - that that basis for a more accurate accurate description description of of how courts courts actually form the basis operate operate in in society. Part III then offers a very very different different description description of American American constiPart tutionalism, one that that I believe believe mirrors mirrors reality far more more than than does discountermajoritarian difficulty. Part cussion cussion of the countermajoritarian Part III relies relies upon the three facets identified Part II to describe describe the actual actual role of judicial judicial identified in Part but interpret the Constitution, courts This role is dialogic: review. dialogic: but constitutional dialogue. they also facilitate and mold a societywide societywide constitutional Through this societal societal dialogue the document document takes on meaning. Part III describes describes how the dialogue operates, focusing on one particularly constitutional dialogue, the debate about significant significant constitutional about abortion. Part III III then identifies identifies the specific role that courts play in fostering dialogue. Finally, Part Part III concludes concludes with a discussion discussion of the inevitability inevitability of dialogue and the internal systemic forces that constrain constrain judicial judicial behavior. Underlying Underlying much of the countermajoritarian countermajoritarian difficulty is a concern about judicial constraint; normative theories that inevitably constraint; but the normative follow a discussion of the countermajoritarian countermajoritarian difficulty difficulty do not, in reality, constrain judicial behavior, howconstrain judges. There is constraint upon judicial ever. Part III explains at some length how that constraint is inherent in our dialogic system, not external to it. constitutional Some deride the dialogic thread thread of some recent constitutional

and IncommensuraIncommensuraIndeterminacy and supra note 3, at 46; Steven L. Winter, Indeterminacy 24. Chemerinsky, supra (1990) ("In the received received wisdom, judiL. REv. REv. 1441, 1441, 1513 (1990) Law, 78 CAL bility in in Constitutional ConstitutionalLaw. bility CAL L. majoritarian as countermajoritarian countermajoritarian because it invalidates the products cial review is seen as products of the majoritarian in much of the thinkpolitical process."). Professor Jan Deutsch identifies an imbedded tension in at ing about courts. We do not want courts to shift with political winds, yet we express concern concern at Neutrality,Legitimacy, electoral decisionmaking. See Jan G. Deutsch, Neutrality, their insulation from electoral Legitimacy, and STAN. L. REv. REV. and Political PoliticalScience, IntersectionsBetween Law and Supreme Court: the Supreme Court: Some Intersections Science, 20 STAN. do... (1968) ("What we cannot do 169, 187 (1968) ... is have it both ways, simultaneously denying denying legitito politically unresponsive institution and to decisions of one that responds to macy to decisions of a politica1Iy shifts in political sentiment."). sentiment.").


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scholarship.25 dialogue has been called "trendy,"26 scholarship. 25 The notion of dialogue "trendy, ' 26 and indeed it indeed it may be so. An idea is not wrong, however, simply because it is current. Prior attempts at resolving countermajoritarian diffiresolving the countermajoritarian 27 culty on its own terms have obviously obviously failed to persuade. persuadeP Although one possibility is that the countermajoritarian countermajoritarian difficulty simply simply is insoluble, another possibility is that none of the theories offered to address the countermajoritarian countermajoritarian difficulty succeeds succeeds in persuading persuading because the countermajoritarian countermajoritarian difficulty difficulty and the premises premises supporting it do not not rest upon an accurate portrayal of the constitutional system we actuaccurate portrayal constitutional 28 The theories ally enjoy. aspirationally enjoy.28 theories often are" are" aspiration ally useful, or instrucfive, tive, but they do not mirror society. To persuade, a theory must fit the evidence evidence it seeks to describe. Although Although mine is not the first work on constitutional constitutional interpretation and the role of courts to rely upon the idea of dialogue, this article is different in important respects. Much of the notion of dialogue discussed cussed by others is normative normative and builds upon what I believe believe to be the descriptively countermajoritarian difficulty. descriptively inaccurate premises premises of the countermajoritarian 29 Ackerman extols Ackerman's work provides a good example. 29 Bruce Ackerman's "is the subject of an ongoing an America America in which the Constitution Constitution "is dialogue amongst scholars, professionals, and the people at large ... "30 But the America •••• "30 America that Ackerman extols has a "rediscovered" "rediscovered" 25. See Earl M. Maltz, The Supreme Supreme Court Court and and the Quality PoliticalDialogue, Quality of Political Dialogue, 5 CONST. COMM. (1988); Robert PoliticalPressure and Judging Judging in Constitutional ConstitutionalCases, Cases, 61 61 CoMM. 375 (1988); Robert F. Nagel, Political Pressure and U. CoLO. COLO. L. REv. 685, 700 (1990); L.J. (1990); Steven D. Smith, The Pursuit Pursuit ofPragmatism, Pragmatism. 100 YALE L.J. (1990). 409, 434-37 (1990). 26. See Nagel, supra supra note 25, at 700. 27. See ROBERT F. CONSTITUTIONAL CULTURES: MENTALITY AND F. NAGEL, NAGEL, CoNSTITUTIONAL CULTURES: THE MENTALITY AND CONSECONSEQUENCES OF JUDICIAL REVIEW 2 (1989) "parade of theories, each one brilliantly QUENCES (1989) (discussing a "parade argued and each on~ one profoundly unsatisfactory"). 28. Ely's theory, for example, is normatively normatively interesting inaccurate. Ely interesting but descriptively inaccurate. argues that courts should defer defer to majoritarian decisionmaking decisionmaking unless judicial action is necessary to protect the functioning functioning of the political political process process or to protect a minority group subject to prejupolitical process. See ELY, supra supra note 5, at 102-03; 102-03; John Hart Ely, Another Such dice in the political Victory: Constitutional Practice in aa World Where Where Courts Courts Are No Different from Constitutional Theory and Practice from Legislatures 77 VA. L. REv. 833, Legislatures, 833, 833 n.4 (1991). (1991). Courts obviously obviously seem to do more than perSee, e.g eg.,.• Lee v. Weisman, Weisman, 112 S. Ct. 2649 Ely spells out for them, however. See. 2649 (1992); (1992); form the role Ely cf Lawrence G. Sager, The Incorrigible IncorrigibleConstitution, (1990) (argucf. Constitution. 65 N.Y.U. L. REv. 893, 893 (1990) (arguing that that the ing the Constitution Constitution "simply "simply will not fit the discipline of the accounts accounts commonly offered on on its behalf"). Public choice theory actuaIly actually presents converse of this problem. problem. Public Public choice theory presents the converse seeks to be brutally brutally honest about our political political world, but in its brutality brutality seems to miss some some of of the nobler - or at least more ideological ideological - aspects of political & political life. See DANIEL A. FARBER FARBER & PHILIP P. FRcKEY, AND PUBLIC CHOICE 23-33 Politics FRICKEY, LAW LAW AND 23-33 (1991); (1991); William N. Eskridge, Jr., Politics Statutory Interpretation. Interpretation,74 VA. L. Without Romance Romance: Implications Implications of of Public Public Choice Choice Theory for for Statutory (1988). REv. 275, 276 (1988).

29. See ACKERMAN, AcKEidAN, supra supra note 14, at 5-7; see also Ackerman, supra supra note 3; Bruce Ackerman, Constitutional ConstitutionalPolitics/Constitutional Law, 99 YALE YALE L.J. L.J. 453 (1989). (1989). Politics/Constitutional Law. 30. ACKERMAN, supra note 14, at 5. ACKERMAN, supra 5.




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31 According constitution set up along his own own novel novel "dualist" "dualist" theory. theory.3l According constitution to that that theory, the people's people's voice voice is sovereign sovereign and and can can be heard heard in one one of of two ways: ways: either either through through the operation operation of ordinary ordinary politics, or dur32 Ackerman's periods of extreme extreme mobilization mobilization of of the the people.32 Ackerman's view view ing periods is that periods periods of extreme extreme mobilization mobilization in effect effect amend the the Constitu33 Thus, courts tion. 33 courts are are justified justified in following following the voice voice of of the the people over ordinary ordinary politics when - and only when when - such extreme mobiliover zation zation occurs. In setting setting out his dualist theory, therefore, Ackerman Ackerman reveals that that he too too is caught caught up up in in the the need to legitimize legitimize courts and "dis-solve") 34 the countermajoritarian solve solve (or, as he says, "dis-solve")34 countermajoritarian difficulty. The The conclusions conclusions of this article deviate from such such generally accepted cepted theory and and thought, as to both the the role of constitutional constitutional courts constitutional rights. Courts, Courts, as described described here, do and the nature of constitutional not stand aloof from society society and declare rights. Rather, they interact interact on a daily basis with society, society, taking part part in an interpretive interpretive dialogue. Rights, by the same token, do not override override majority will. Rather, "the People" People" define and redefine redefine their rights every day as the interpretive interpretive dialogue dialogue proceeds. proceeds. At the close close of this article, I discuss Antoine de Saint Saint Exupery's Exupery's 35 who in 36 What Little Prlnce,3S his travels meets meets a king. 36 What a peculiar peculiar Little Prince, "He tolerated king he is: "He tolerated no disobedience. He was an absolute absolute monarch. But, because he was a very good man, he made his orders rea38 ' 37 So it is with our Supreme Court. Since Cooper Cooper v.v. Aaron, 38 sonable."37 sonable." supremacy in interpreting at least, the Court Court has pretended pretended to absolute absolute supremacy interpreting the Constitution. Whatever itself Whatever the value of this pretense, which itself countermajoritarian difficulty, the gives rise to the discussion discussion of the countermajoritarian reality reality is quite different. Rather than declaring declaring what the Constitution Constitution discussion means means and expecting expecting obeisance, courts solicit opinions opinions and discussion from the body politic as to constitutional constitutional meaning and integrate popular views into constitutional interpretation. interpretation. This article is, above all all and the between the pretense the difference understanding else, about understanding pretense reality of judicial judicial review.

31. 32. 33. 34. 35. 36. 37. 38.

Id Id. Id Id. at 6-7. lawmaking," see id. id at 266-94. For a description description of the process of "higher lawmaking," supra note 3, at 1016. Ackerman, supra 1971). EXUPifRY, THE LITTLE LrrrLE PRINCE (Katherine Woods trans., 1971). ANTOiNE DE SAINT SAnr ExuPERY, ANTOINE Id Id. at 41. 41. Id at 42. Id. (1958). 358 U.S. 1 (1958).


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government that seem One thing is clear: courts are the bodies of government to require explanation. Despite considerable scholarship questioning the extent to which much of our government is majoritarian or representative, commentators continue to appear concerned that courts courts are are 39 Although a great the "deviant" "deviant" institution that must be legitimated. 39 deal of work has been devoted in recent years to the notion that the legislative process is not as majoritarian as we idealize, little focus has 40 This been given to the other side of the equation. 40 section is devoted to challenging challenging the notion that courts and judicial judicial review are systematimajoritarian than the "political" "political" process. On close examinacally less majoritarian tion, one must question just how "countermajoritarian" "countermajoritarian" courts are. The point of this Part is not to prove that courts are majoritarian. This would be a surprising conclusion, especially in light of the serious questions as to whether the rest of government is, strictly speaking, majoritarian. majoritarian. Rather, my more modest goal is to show that courts do not trump majority will, or remain unaccountable unaccountable to majority sentiment, nearly nearly to the extent extent usually depicted. Measured Measured by a realistic baseline of majoritarianism, courts are relatively majoritarian. majoritarian. Defining Majoritarianism Majoritarianism A. Defining 41 One might assume that legal legal commentators41 agree on precisely what "majoritarianism" "majoritarianism" encompasses. encompasses. After all, majoritarianism lies 39. 39. Chemerinsky, Chemerinsky, supra supra note note 3, 3, at 46 46 ("For several decades, the scholarly scholarly literature literature about about judicial review review has been dominated dominated by a quest constitutional principles judicial has been quest for objective objective constitutional principles and a concon· viction society."). viction that judicial judicial review review is a deviant deviant institution institution in a democratic democratic society."). 40. Some Some exceptions exceptions (although (althOUgh not not pursuing pursuing my dialogic dialogic theme) are Chemerinsky, supra supra note note 33 (arguing (arguing that courts properly are countermajoritarian); countermajoritarian); Spann, Spaan, supra supra note note 20 (questioning the extent fulfill its "traditional" extent to which which the Court Court possibly could could fu1fi11 "traditional" role of protecting minorities); Winter, Garner and the Democratic Winter, supra supra note note 24; 24; Steven Steven L. L. Winter, Winter, Tennessee Tennessee v. v. Garner Democratic Practice Practice of of Judicial & Soc. CHANGE (1986) [hereinafter Judicial Review, Review, 14 14 N.Y.U. REv. L. & CHANGE 679 (1986) [hereinafter Winter, Judicial Judicial Review]; Upside/Down View of the Countermajoritarian Review]; Steven Steven L. L. Winter, Winter, An An Upside/Down Countermajoritarian Diffculty, Difficulty, 69 TEXAS Upside/Down]. TExAs L. REv. 1881 (1991) (1991) [hereinafter [hereinafter Winter, Upside/Down]. 41. that follows 41. The The discussion discussion that follows draws primarily primarily from legal scholarship. Another, Another, and perhaps haps more more sophisticated, sophisticated, body body of of literature literature on majoritarianism majoritarianism is found in social science, and particularly particularly political political science, science, writing. writing. That That writing writing suggests suggests an an underlying underlying problem problem with the entire entire structure structure upon upon which which the the countermajoritarian countermajoritarian difficulty difficulty is built, the problem problem that that the notion tion of a majority majority of the people people is is a fiction fiction in in and of itself. See DON DON HERZOG, HERZOG, HAPPY HAppy SLAVES: A CRITIQUE CRITIQUE OF OF CONSENT CoNSENT THEORY THEORY (1989), (1989), and and particularly particularly id id. at 206-14. 206-14. I address address this problem problem in in Part Part III. III. Moreover, Moreover, work work on on public public choice choice draws draws heavily from the social sciences sciences in addressing addressing the the other other half half of of the countermajoritarian conntermajoritarian difficulty, asking asking how majoritarian majoritarian the political political branches branches are. See infra infra notes notes 48-49 and and accompanying accompanying text. Although Although footnotes throughout throughout the article article draw draw on on this this social social science science literature, literature, my my focus focus in in defining majoritarianism majoritarianism is, again, again, legal legal scholarship. for the legalliterature, scholarship. My My reason reason for the focus is that that this article article is a response to to the the legal literature, not not to the the political political scientists. scientists. Part Part of of my point is is that, just as public choice has helped helped us assess assess consticonstitutional tutional theory theory regarding regarding the the political political branches, branches, we should question our our assumptions assumptions regarding regarding courts. courts.


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the heart heart of of the the countermajoritarian countermajoritarian difficulty. difficulty. But But beyond beyond agreeagreeat the ment in the the most most general general terms, terms, commentators commentators differ differ in their underunderment standing of the countermajoritarian countermajoritarian difficulty difficulty with with judicial judicial review review in in aa standing of ostensibly ostensibly majoritarian majoritarian governance. governance. system of No one seems seems to go go quite quite as far as Alexander Alexander Bickel Bickel in in stating stating the the No 42 42 majority Bickers concern concern was that that courts courts overturned overturned problem. Bickel's Majoritarianism was, was, for Bickel, Bickel, the the heart heart of of democratic democratic govwill.4433 Majoritarianism Without majoritarianism majoritarianism there was no consent, and without without ernance. Without 44 Because consent no legitimacy. legitimacy.44 Because courts interfered interfered with with the will will of the consent 4 6 Bickel was 4 5 judicial majority,45 judicial review review was was a "deviant "deviant institution." institution."46 Bickel was majority, the difficulties difficulties with this argument, argument, but he managed at botaware of all the with what might might be called called the purest purest tom to dismiss them and leave us with 47 countermajoritarian difficulty. difficulty.47 form of the countermajoritarian followed Bickel Bickel seem unwilling to state the probThose who have followed recognition Most of their difficulty stems from the recognition lem so forcefully. Most 48 in rule,48 that, although democracy democracy has something something to do with majority majority rule, representative system system like our own majority rule is purely a question question a representative 49 All evidence evidence suggests suggests the Framers Framers of our Constitution Constitution did did of degree. All 50 of majority majority rule. rule. so base the document upon the principle of not intend to base sought 42. Bickel's work - rather than just setting out the countermajoritarian countermajoritarian difficulty - sought to solve it. Bickel did not suggest that judicial review was deviant and should be abolished. Rather, his goal was to justify the practice, practice, which which he did by extrapolating from the nature nature of courts as opposed to the other branches government. Focusing Focusing in particular particular on the Supreme Supreme branches of government. concluded that, given given its insular position, the Court could serve serve as an opinion opinion Court, Bickel concluded prophet" leading the people to higher higher and more enduring values. BICKEL, "shaper and prophet" leader, a "shaper 11. supra supra note 11. also Kronman, supra supra note 2, at 239; see also of repreCourt... ("Mhe Supreme Court 43. See BlcicL, BICKEL, supra ... thwarts the will ofrepresupra note 2, at 16-17 ("[T]he people ••.. sentatives .... "). "). sentatives of the actual people supportable- government 44. See id. government is possible possible ("[Cloherent, stable - and morally supportable id. at 20 ("[C]oherent, only on the basis of consent •... .... "). "). ... it legislative act •.• 45. Id. declares unconstitutional aa legislative Supreme Court declares ("[W]hen the Supreme IAl at 16-17 ("[W]hen against it."). exercises behalf of the prevailing majority, but against on behalf exercises control, not on 18. Id at 18. 46. Id. dismissing difficulties). 47. and dismissing id (discussing (discussing and 47. See id. definition of democracy as 48. See Chemerinsky, supra note 3, at 64 this century, aa definition 64 ("During ("During this supra 48. PoliticalBranches. Court and and the Political Supreme Court Branches: majority rule has has emerged."); emerged."); Jesse H. Choper, The Supreme ("[Miajority rule has been 810, 810 (1974) ("[M]ajority Democratic L. REv. 810, PA. L. and Practice, Practice,122 U. PA. Democratic Theory and see also also and practice."); practice."); see theory and political system in both theory considered the the keystone keystone of a democratic political and weak forms strong and 135 (1989) (1989) (describing strong CRrrics 135 ROBERT A. DAHL, DEMOCRACY AND ITS ITs CRITIcs that democracy democracy requires majority rule in the weak of majority rule; assumes that everyone assumes rule; "virtually "virtually everyone passing aa law"). be necessary necessary to passing sense support by aa majority ought to be that support sense that "continfall on a "continpolitical branches fall 49. See Chemerinsky, at 82 82 (arguing that political supranote note 3, at Chemerinsky, supra all branches of note 48, at 816 (noting that all uum" of supra note Choper, supra majoritarianism); Choper, of relative majoritarianism); aspects). government have undemocratic aspects). truth isis that the historical truth that "[t]he "It]he historical 50. See (arguing that 1015 (arguing at 1015 supra note 3, at See Ackerman, Ackerman, supra democratic charas aa democratic not intended intended as Constitution was "was not act" that that "was anti-popular act" fundamentally anti-popular was aa fundamentally Framers' (discussing Framers' text (discussing accompanying text 191-201 and accompanying ter in alsoinfra infranotes 191-201 first place"); see also in the the first intent).


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Even if if itit was was their intent, intent, in reality reality the the ideal seems seems unobtainable. unobtainable.55l1 Even Thus, most most commentators commentators view view the majoritarian majoritarian problem as as one of Thus, judicial interference interference with with the actions of popularly elected bodies or or judicial 52 bodies. such to accountable those those to such bodies. 52 It remains remains to to explain, explain, however, why why judicial interference interference with It popularly elected bodies and and those those accountable to them is problematic. What do courts lack that legislatures have? To this this question there appears aa host host of of answers; at at the risk of inaccurate generalization a appears is possible. rough division is One objection objection is substantive. substantive. The decisions decisions that count count in aa democOne racy are the ones that reflect majority will. In our system the best 53 be legislative legislative judgment. to be is thought thought to of this this majority majority will is reflection of reflection judgment. 53 If so, when courts overturn legislative judgments judgments they are interfering with the best assessment of majority will. will. 5544 This is seen as particularly 'with the problematic when a judicial decision is constitutional, because constitutional decisions viewed as immune from popular overruling.55 tutional decisions are viewed 55 The other objection objection is one of process. process. Whether or not any given The other is one legislative determination determination actually actually reflects reflects majority will, democracy legislative 56 The process for implementing theoretically assures majority control. theoretically 56 this control control is is popular election. As the theory goes, legislators are subthis popular election. ject to to election, election, and and other officials are at least subject ject other officials subject to legislative 51. See supra note 3, at 78 ("research... 51. See Chemerinsky, Chemerinsky, supra ("research ••. has powerfully demonstrated that legislative action action frequently does not reflect the the sentiments legislative frequently does not reflect sentiments of society's society's majority"); Larry Kramer, The The Lawmaking FederalCourts, Courts, 12 PACE (1992) ("It is Kramer, Lawmaking Power Power of the Federal PACE L. REv. 263, 272 (1992) impossible to have government impossible to have government rule in in a nation nation of this size under under a system that that requires every every individual, or also infra notes 307-08 individual, or even even a majority, majority, to consent consent to every decision."); see also 307-08 and accompanying text accompanying text (discussing (discussing public choice choice theory). 52. See, ag., BiICEL, supra by the Burger 52. See, e.g., BICKEL, supra note 2, 2, at 17; 17; Suzanna Suzanna Sherry, Sherry, Issue Manipulation Manipulation by Court: Saving Saving the 611, 613 (1986) ("[When MINN. L. REv. 611, 613 (1986) ("[W]hen the Court: the Community from from Itself Itself, 70 MINN. Court invalidates elected body; in essence, it is is overturning overturning the decision decision of of a popularly popularly elected Court invalidates aa statute, statute, it it it is is enforcing enforcing its its own own will will over over that of the electorate."). electorate."). 53. 53. See See Ackerman, Ackerman, supra supra note 3, 3, at 1035 1035 ("[Tlhere ("[T]here is is only only one place place in in which which the political will will of of the the American American people people is to be be found: found: the the Congress of of the United United States."); States."); Sherry, Sherry, supra supra note note 52, 52, at at 612 612 (noting (noting that that our our representative representative democracy democracy possesses possesses a majoritarian majoritarian structure). 54. BICKEL, supra supra note note 2, at 16-17; 16-17; Sherry, supra supra note note 52, 52, at 613; Winter, supra supra note 24, at at 54. BicKEi, 1513. 1513. 55. supra note 48, 48, at 811-12. 811-12. See BIcIKEL, BICKEL, supra supra note 2, 2, at 17 (arguing (arguing that that democdemoc55. Choper, Choper, supra racy racy means means that that a representative representative body body has has the power power to to reverse reverse judicial judicial decisions). decisions). The The countermajoritarian countermajoritarian difficulty difficulty undoubtedly undoubtedly is is seen seen as as most most acute acute when courts courts overturn overturn political decisions decisions on on constitutional constitutional grounds, grounds, the the presumption presumption being being (as (as the the cited cited sources sources suggest) suggest) that the the judicial of political political decisionmaking. decisionmaking. In In this this artiartijudicial decision decision then then removes removes the the issue issue from from the the realm realm of cle cle II endeavor endeavor to to show show that that such such aa judicial judicial decision decision often often has has popular popular support support or rests rests upon upon sources sources that that reflect reflect majority majority will. will. II also also argue argue that that even even this this notion notion of ofjudicial judicial finality is, is, at best, best, overstated. overstated. See See infra infra notes notes 332-86 332-86 and and accompanying accompanying text. 56. 56. See See Henry Henry S. S. Commager, Commager, Judicial Judicial Review Review and Democracy, Democracy, 19 19 VA. VA. Q. REV. REv. 417, 417, 418 418 (1943) (1943) ("the ("the one one non-elective non-elective and and non-removable non-removable element element in in the the government government rejects rejects the the concluconclusions sions as as to to constitutionality constitutionality arrived arrived at at by by the the two two elective elective and and removable removable branches"); branches"); Sherry, Sherry, supra supra note note 52, 52, at at 612 612 (stating (stating that that our our representative representative democracy democracy is is majoritarian majoritarian in structure).



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control.5577 Thus, a rough chain of majority control constrains those who govern.58 58 Judges stand in stark contrast contrast to this model of governance. Judges, unelected and appointed unelected appointed for life, are unaccountable unaccountable to legislative and executive the majority even though their decisions, like legislative 59 ones, impose rules upon the majority.59 From this discussion, it is possible to derive some benchmarks of benchmarks of majoritarianism against against which which judicial judicial review can be measured. measured. First, substance majoritarianism, majoritarianism,which looks to determine whether there is substance whether judicial decisions interfere interfere with or actually actually comport comport with majority Substance majoritarianism in turn has two measures: results and rule. Substance examines the actual sources. Result majoritarianism majoritarianism examines actual results of judicial correspond with decisions in order to determine determine whether those results correspond Because information is not always majority preferences. preferences. Because always available available to source assess majority sentiment regarding judicial judicial decisions, however, source majoritarianism looks to the sources of judicial decisionmaking, majoritarianism sources decisionmaking, asking to what extent courts have turned to and relied upon evidence of pop6O ular will in deciding deciding cases. 6° majoritarianism Second, there is process process majoritarianism. majoritarianism. Process majoritarianism accountable to majority examines the extent to which the judiciary judiciary is accountable 19. 57. BicKEI., BICKEL, supra supra note 2, at 19. 58. See infra 295-301 and accompanying infra notes 295-301 accompanying text (discussing (discussing chain of accountability). 59. Louis M. Seidman, Ambivalence and Accountability, 1571, 1586 Louis and Accountability, 61 S. CAL. L. REv. 1571, (1988) ("Whatever majoritarianism] includes, (1988) ("Whatever else one believes the concept concept [of majoritarianism] includes; there is surely

decisionmaking by officials general agreement agreement that it does not normally include substantive substantive decisionmaking officials who shielded from any form of popular control."). Professor Seidman provides provides a are deliberately deliberately shielded between particularly eloquent eloquent discussion of judicial accountability, accountability, demonstrating the nexus between source majoritarianism majoritarianism and process majoritarianism: majoritarianism: Sometimes Sometimes we say that persons are accountable accountable when when they are required to give an account count of themselves themselves - that is, to give reasons or justifications for conduct and to demonstrate strate that such conduct is not the product of mere whim or caprice. caprice. If one uses the word in in this sense, judges - at least most appellate judges much of the time - are are accountable. accountable. The custom custom ofjudicial ofjudicial opinion writing is a highly developed developed system for providing accounts of the resolution resolution of disputed questions. Indeed, when when the word word is used used in this fashion, the main difficulty legislative, rather than judicial accountability. difficulty we face is explaining explaining the absence absence of legislative. accountability. "Accountability" is also used in a second "Accountability" second sense, however. We sometimes talk of persons being held accountable or accountable for their decisions - that that is, being being made made responsible for them or being forced to bear the costs of a mistake. When the term term is used in this fashion, the accountability accountability of judges is more problematic, problematic, and it is this kind of judicial judicial accountability that that II will address in the remainder of this essay. Of Of course, the two meanings meanings of the term are interrelated. interrelated. One way that people are made accountable themselves.... accountable is by forcing them to give an account of themselves .•.. Id. Id. at 1574. 60. Source majoritarianism majoritarianism actually actually may be seen as related related both to substance and to process. It relates relates to substance substance in that reliance on the sources sources that represent represent majority will may be intended to guarantee guarantee results consistent consistent with popular preference. Reliance on sources that represent majority also may relate to accountability, do rely on accountability, however, in that one could could argue that if judges do constrained by, and thus in a sense accountable such sources they are constrained accountable to, the majority. Rigid Rigid categorization is unimportant: these definitions are useful only to the extent they organize organize a way categorization of looking at judicial majoritarianism. concept of source majoritarianism. I am, however, using the concept source majoritarianism more in the former sense, and and I thus have included it in the discussion of substance.


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will. As As in in the the legislative legislative realm, realm, the the inquiry inquiry here here recognizes recognizes that all will. all governmental decisions decisions cannot cannot actually actually depict depict majority will; will; thus, thus, the the governmental question is whether, whether, if if the the majority majority is is unhappy unhappy with with judicial decisions, decisions, question it can influence who the judicial decisionmakers will be. it influence who the judicial will B. Assessing Assessing Majoritarianism Majoritarianism B. This section section employs the measures of of majoritarianism set out in This the previous test the majoritarian nature of courts. courts. With the previous section to test regard to to substance substance majoritarianism, majoritarianism,the section first examines sources sources regard of constitutional decisionmaking, finding that courts frequently draw of constitutional decisionmaking, upon evidence of majoritarian will in reaching upon evidence of decisions. Next, it examines polling data relating to some controversial judicial decisions in amines order to to assess assess whether judicial results results reflect majoritarian will. The order answer is that quite often they do. Finally, the section turns to the answer is question of process process majoritarianism, majoritarianism,examining selection examining whether the selection and accountability accountability of judges somehow differs so significantly from that and of other other governmental governmental officials as to account for the of countermajoritarian label affixed to courts. The answer again turns countermajoritarian out to constraints on the judiciary. out to be be that there are accountability accountability constraints 1. Substance Substance Majoritarianism Majoritarianism There are There are two two measures measures of substance substance majoritarianism: sources and and results. The following examination results. The following examination of source source majoritarianism majoritarianism indicates interpreting concates that that courts courts often rely on on majoritarian majoritarian sources sources in interpreting stitutional stitutional guarantees. guarantees. The examination examination of result result majoritarianism majoritarianism confirms that even the most controversial judicial decisions often enjoy confirms that even the most controversial judicial enjoy popular support. support. a. a. Sources. Sources. The The first task task is is to measure measure the'sources the 'sources of constituconstitutional tional interpretation, interpretation, with an an eye toward toward demonstrating demonstrating just just how 61 majoritarian majoritarian the the sources sources are. are. 61 Before Before tackling tackling that that task, however, however, a word regarding the essentially deferential word regarding the essentially deferential nature nature of judicial judicial review. review.62 62 ii. An An aside aside on on the the majoritarian majoritarian nature nature of of constitutional constitutional decisionmaking. making. The The entire entire pattern pattern of ofjudicial judicial interpretation interpretation of constitutional constitutional rights is woven into a fabric of deference rights is woven into a fabric of deference to to the the will will of of ostensibly ostensibly more 61. 61. See See Spann, Spann, supra supra note note 20, 20, at at 1982 1982 ("In ("In many many instances, instances, the the governing governing substantive substantive principrinciples . ."), ples of of law law themselves themselves incorporate incorporate majoritarian majoritarian values.. values •••• "), 1984-85. 1984-85. 62. 62. See Seegenerally generallyRichard RichardFallon, Fallon, Individual IndividualRights Rightsand andthe the Powers Powersof ofGovernment, Government. 27 27 GA. GA. L. L. REv. REv. (forthcoming (forthcoming 1993). 1993). In In this this piece, piece, which which follows follows his his 1992 1992 Sibley Sibley Lecture Lecture at at Georgia Georgia Law Law School, School, Professor Professor Fallon Fallon argues argues convincingly convincingly that that rights rights are are not not conceptually conceptually independent independent "con"constraints straints on on government, government, but butare are defined defined in interms termsof ofwhat whatpowers powers itit would would be beprudent prudent or ordesirable desirable for for government government to to have." have." Id. Id. (manuscript (manuscript at at 1-2). 1-2). Fallon Fallon meticulously meticulously defends defends his his thesis thesis with with numerous of rights rights defined defined with with reference reference to to government government powers. powers. numerous examples examples of



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63 majoritarian branches. 63 majoritarian True, a judicial judicial decision decision that bucks what appears will receive great media and even scholarly pears to be the trend often will attention. But the fact of the matter is that courts usually approve the 64 officials. 64 work of legislative legislative and executive officials. deference is built into the system of judicial Judicial deference judicial review. Courts often make decisions about whether to trump government action with a thumb on the side of the scale that represents the will will of of the ostensibly majoritarian majoritarian branches. This is true, for example, of any form of tiered review, such as that used for equal protection protection and sub6S In tiered review, courts determine stantive stantive due process process claims. 65 whether the challenged challenged governmental governmental rule or conduct passes passes means66 Courts end scrutiny, which involves two or three or more levels.66 view the vast majority of such governmental governmental decisions through the 67 prism of low-level, or rational basis, scrutiny. oflow-Ievel, scrutiny.67 Implicit in low-level low-level 68 course. 68 chosen course. deference to the government's chosen scrutiny scrutiny is deference 63. Chemerinsky, supra 63. Chemerinsky, supra note 3, at 57 ("[O]ne obvious consequence consequence of the Court's jurisprudence dence is that the government generally generally wins constitutional constitutional cases."); cases."); cf cj. Winter, supra supra note 24, at at 1475 ("[L]aw ("ELlaw is nested in and entirely contingent contingent on the wider social practices practices and understandunderstandings that are sedimented sedimented in any culture."). Some evidence evidence exists that the government's government's success rate has been litigation under the Rehnquist in constitutional constitutional litigation Rehnquist and Burger Burger Courts, been unusually high in aberrational in ruling against againstthe government government so but the Warren Court may simply have been been aberrational so frequently. Cj. Cf Chemerinsky, supra supra note 3, at 58 (presenting (presenting statistics regarding the governgovernment's success compiled some extremely this regard, Dean Stone has compiled success rate under under each Court). In this valuable statistics. See Geoffrey and the Era Geoffrey R. Stone, O.T. 1983 and Era ofAggressive Majoritarianism: Majoritarianism: Courtin Transition, 15, 16-17 16-17 (1984). (1984). Stone's point was that the Burger Court A Court Transition. 19 GA. L. REv. IS, looked majoritarian if one studied looked increasingly increasingly majoritarian studied the winners and losers in Supreme Supreme Court constitutional cases. Although Stone's increasingly rejecting Stone's statistics statistics do indeed show the Court increasingly rejecting constitutional claims, those same tables also show aa very limited period in which the Court actually decided in favor of the constitutional constitutional claimant more than 50% id. at 16 (In chart chart 50% of the time. See id. showing showing five-year intervals, only 1963 1963 and 1968 are periods with over 50% of the decisions favoring a constitutional constitutional claim.). 64. See Stone, supra supra note 63, at 16-17 (reviewing decisions decisions of the Burger Burger Court). 65. See Chemerinsky, supra note 3, at 73 (arguing that Chemerinsky, supra that the Court has internalized the majoritarian majoritarian paradigm; "[n]owhere "[n]owhere is this internalization internalization more clear than in the familiar 'tiered jurisprudence' fundamental rights and and equal protection cases"). jurisprudence' employed in fundamental 66. See GEOFFREY CONSTrrUTiONAL LAW 1991) (discussGEOFFREY R. STONE STONE ET ET AL., AL., CoNSTITUTIONAL LAW 532-33 532-33 (2d ed. 1991) ing tiered scrutiny in equal protection); see also San Antonio Indep. Sch. Dist. v. Rodriguez, Rodriguez, 411 U.S. 98-99 (1973) (1973) (Marshall, J., dissenting) (challenging U.S. 1, I, 98-99 (challenging Court's attempts to place equal equal protection "two neat categories"). categories"). tection cases into "two 67. See Chemerinsky, supra supra note note 3, 3, at 73 (noting that most cases are decided under under low-level scrutiny "government almost always wins"). scrutiny under which "government 68. LAURENCE AMERICAN CoNSTITUTIONAL CONSTrrUTIONAL LAW §§ 16-2, LAURENCE H. TRIBE, AMERICAN 16-2, at 1440 1440 (2d ed. 1988); Legitimate Government Purposes and the Ensupra note 3, 3, at 73; D. Don Welch, Welch, Legitimate Purposes and Chemerinsky, supra forcement Community's Morality, Morality, 1993 1993) (manuscript (manuscript at forcement ofthe Community's 1993 U. ILL. L. Rav. REv. (forthcoming 1993) 14) (discussing (discussing deferential low-level low-level scrutiny test). The Court only extremely extremely rarely strikes down government government conduct when applying low-level scrutiny. See Chemerinsky, supra supra note 3, at 73. In In fact, in order to obtain high-level substantive due process cases, a litigant must conhigh-level scrutiny scrutiny in substantive requirement that in turn has a majoritarian vince the Court that a right is "fundamental," "fundamental," a requirement majoritarian cast. See, e.g., eg., Bowers v. Hardwick, 478 U.S. U.S. 186, 192-94 (1986) (1986) (determining whether homosexual homosexual See, sodomy is"" 'deeply rooted in this Nation's history sodomy is a fundamental right by asking whether right is and tradition'" tradition'" and examining state practices practices on subject); subject); Moore v. City of East Cleveland, 431 U.S. (1977) (plurality opinion) (determining U.S. 494, 503-05 (1977) (determining whether right for family members be-


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Sometimes the Court engages in balancing rather than tiered scrutiny. Rather than seeking to define the scope of the right in the abtiny. stract, for example, the Court regularly defines the right by weighing of the government's interests in regulation, or balancing the interests of the government government in not recognizing the right, against the value of the 69 Although right to the individual. 69 Although theoretically balancing need not favor one side of the rights-deference equation, in practice balancing tends to overweigh overweigh government interests. Judicial opinion after judicial opinion demonstrates this, deferring to the "legitimate" "legitimate" or "sub"substantial" needs of government a right.70 stantial" government to give content to aright. 70 Courts 71 claimed needs. often fail to scrutinize seriously seriously these these claimed needs. 71 Care Care must be taken, therefore, in jumping jumping to conclusions of judicial of countermajoritarianism. The following discussion takes up the task of demonstrating that, even when courts rule in favor of individuals in contexts that appear facially countermajoritarian, the courts nonethenecessary less struggle to apply majoritarian majoritarian sources of decision. But a necessary first step in this analysis recognizes that this is a relatively rare event. For the most part, courts defer to - indeed offer support to - the decisions of ostensibly majoritarian government. Courts have a builtin mechanism mechanism to do so. it The sources sources of constitutional constitutionalinterpretation. interpretation. The discussion that iL U.S. Supreme follows draws largely from U.S. Supreme Court cases interpreting the content of the right to trial by jury. The jury right plays a central role yond nuclear family to live together is fundamental by examining the "Nation's history and tradition" through census data, studies on family living patterns, patterns, and and other evidence of American tradition" traditions). 69. Fallon, supra note 62 (manuscript at 25-27). 25-27). Balancing Balancing or weighing is familiar in criminal constitutional See, eg., constitutional law decisions. decisions. See. e.g.• Baltimore City Dept. of Social Servs. v. Bouknight, 493 U.S. U.S. 549, 555-56 555-56 (1990) (1990) (holding privilege against against self-incrimination self-incrimination reduced reduced in light of government's ernment's legitimate legitimate noncriminal regulatory needs); South Dakota v. Opperman, Opperman, 428 U.S. U.S. 364, 368-76 (1976) (permitting inventory search compartment; government 368-76 (1976) search of glove compartment; government interests in securing cars and contents contents outweigh intrusion of search); search); Warden v. Hayden, 387 U.S. U.S. 294, 298-300 298-300 (1967) situation). Balancing Balancing is also also (1967) (finding (finding warrantless warrantless search of houses justified by exigencies of situation). See, e.g eg., Serv. •• Central Hudson Gas & & Elec. Corp. v. Public Public Servo prevalent in First Amendment Amendment cases. See. Commn., (1980) (In commercial speech cases, the Court asks, in part, whether Commn., 447 U.S. U.S. 557, 566 (1980) whether government has a sufficiently sufficiently substantial speech that is not misgovernment substantial interest to permit regulation of speech leading and concerns lawful activity.); activity.); FCC v. Pacifica Found., 438 U.S. 726, 748-51 748-51 (1978) (1978) (stating that government's broadcasting government's interest interest in regulating airwaves airwaves may outweigh outweigh interest in broadcasting indecent, yet not obscene, speech); United (1968) (stating United States v. O'Brien, O'Brien, 391 U.S. 367, 367, 376-82 (1968) that government's substantial substantial interest in operation of Selective Service system system may justify justify regulation of conduct that includes "speech" "speech" and "nonspeech" "nonspeech" elements). 70. See supra supra note 69. 71. See Illinois v. Lafayette, 462 U.S. 640, 647-48 (1983) (upholding (upholding inventory 71. 647-48 (1983) inventory search, eschewing "less intrusive" practices, and chewing need to examine "less intrusive" means, refusing to "second-guess" "second-guess" police pmctices, and declining declining to require require police to make make "fine and subtle distinctions" distinctions" between what can and what what cannot generally Barry Friedman, Trumping Rights, Friedman, Trumping REV. (forthcannot be searched). See generally Rights, 27 GA. GA. L. REv. coming 1993) (discussing how notions of countermajoritarian countermajoritarian difficulty difficulty cause cause courts, when when balcoming 1993) ancing, to defer to assertions of government government interests).


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72 Perhaps more important for present purposes, in the Bill of Rights. 72 the jury invocation of a variety of of jury cases are especially rich in their invocation sources sources of decision. The argument does not rest solely upon the rightto-jury cases, however; however; the section section that follows briefly briefly discusses the pervasive majoritarian approach to defining conCourt's majoritarian pervasive nature of the Court's stitutional stitutional rights. order that The sources of judicial decision are discussed in the order originalists originalists would deem to be acceptable acceptable in judicial interpretation. constitutional text, proceed Thus, I begin with the constitutional proceed to the intent of the Framers, and then move to increasingly less originalist sources. Observe in this ordering a wonderful irony: the very sources of interpretation deemed most legitimate by originalists, textualists, and the like least majoritarian. will prove the least majoritarian. Conversely, the sources deemed illegitimate (and also the sources most often apparently determinative) in a judicial decision discussion decision are the most majoritarian in nature. This discussion thus proceeds proceeds from least to most majoritarian majoritarian sources. The obvious obvious beginning point for defining the content of constitu73 Although one tional rights is, of course, the text of the Constitution. 73 74 could argue that textual reliance reliance is majoritarian, majoritarian,74 the opposite argu75 Most of the text is two hundred ment seems more persuasive. 7s years old, and few of us alive today had any hand in changing changing the text to any formal amendment amendment significant extent. Moreover, to alter the text by formlill Reliance on the would require require more than a majority of the citizenry. Reliance text of the Constitution therefore seems countermajoritarian. countermajoritarian. Perhaps Constitution therefore this is why the Supreme Court often ignores the text, or at least fails to pay close attention to it. The jury jury cases provide a good example. The Court has struggled criminal defendant is struggled with the question of when a criminal entitled to a jury. The answer seems obvious enough from the text. The Sixth Amendment criminal prosecutions, prosecutions, the acAmendment reads: "In all criminal cused shall enjoy the right to... jury ....."76 to ... an impartial jury... -76 But "all" "all"

72. See Akhil Rights as as aa Constitution, Constitution, 100 YALE L.J. L.J 1131, 1131, 1190 Akhi1 R. Amar, The Bill of Rights 1190 (1991) (1991) ("If we seek a paradigmatic paradigmatic image underlying the Bill of Rights, we cannot go far wrong in picking picking the jury."). Cf Erwin Chemerinsky, The Price PriceofAsking the Wrong Wrong Question: Question: An Essay on ConstituConstitu73. Cf. tional Scholarshipand and Judicial TEXAS L. REv. JudicialReview, Rav. 1207, (1984) ("All constitutional tional Scholarship Review. 62 TExAs 1207, 1233 1233 (1984) theories are to some extent interpretivist, because all at least begin by interpreting the language of language of the written Constitution."). Constitution."). Principlesand Some First FirstAmendment 74. See Robert H. Bork, Neutral Neutral Principles Amendment Problems, Problems, 47 IND. IND. L.L 1, 6 (1971); also Seidman, supra note 59, at 1579 ("[R]espect ("[Respect for the text and the intenL.J. I, (1971); see also Seidman, supra tion of the framers framers serves [for originalists] tion originalists] as a functional substitute for political political accountability."); GOVERNMENT BY ity."); cf. cf. RAOUL RAOUL BERGER, BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION TRANSFORMATION OF THE THE FOURTEENTH (1977). FOURTEENTH AMENDMENT AMENDMENT 288-89 288-89 (1977). 75. See Seidman, supra supra note 59, at 1580-81. 1580-81. 76. U.S. U.S. CONST. CoNST. amend. VI (emphasis added).


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77 turns out not to mean all: it just means some. 77 Reaching contratextual contratextual conclusions requires attention attention to sources beyond the text. The next obvious candidate is the Framers' candidate Framers' intent. If courts do not know what the text means (or know but want to disregard the text), they frequently turn to those who had a hand in drafting or ratifying the words. The Framers can be cited on almost any subject, but such citation generally occurs at a level of generality generality use78 Louisiana,79 Thus, in Duncan Duncan v. v. Louisiana, 79 addressing the less to resolve a case. 78 question of whether the Fourteenth Amendment incorporates incorporates the Fourteenth Amendment right to jury trial, the Court stated: "The framers of the [federal [federal and state] constitutions strove to create an independent judiciary independent jUdiciary but insisted upon further protection against arbitrary action."80 action." 80 Probably true enough, but those very same Framers also rejected a constitutional amendment that explicitly would have applied the right to jury trial against the states. states."'81 The Framers' Framers' intent becomes becomes increasingly increasingly less helpful as the question is framed with greater greater specificity, particularly when the specificity includes includes conditions today that may differ differ 82 dramatically from the time of framing. 82 Framers' Is reference to the Framers' dramatically intent majoritarian? majoritarian? To the contrary; it amounts to rule by the dead 83 the grave. 83 from hand Often the Framers failed to give us enough information information to determine their intent, and so the Court turns to preconstitutional history, 77. Having determine Having rejected the explicit explicit language of the Constitution, the Court had to detennine whether interpreted whether or not particular offenses implicated implicated the right to jury trial. The Court has interpreted "crimes" and "criminal prosecutions" Article III the Sixth Amendment in Article III and and the Amendment in light of the "crimes" and "criminal prosecutions" in opposed to serious crimes - were not subject to common law, under which petty offenses -- as opposed jury trial requirements. See Schick v. United States, 195 U.S. (1904); Callan trial requirements. U.S. 65 (1904); Callan v. Wilson, Wilson, 127 U.S. (1888). In making such determinations, the Court has relied on several of the sources U.S. 540 (1888). discussed below. See District of Columbia Columbia v. Clawans, 300 U.S. U.S. 617, 624-30 624-30 (1937) (1937) (relying on on pre- and postconstitutional postconstitutional history, "polling," "polling," and whether whether the offense offense "so "so offends the public public sense (1930) (characsense of propriety and fairness"); District of Columbia v. Colts, 282 U.S. 63, 73 (1930) terizing terizing offense offense at issue as as "petty" "petty" would "shock "shock the general moral sense"). 78. For problems with originaIism originalism generally, see FAnrER & SUZANNA SHERRY, see DANIEL DANIEL A. A. FARBER & SUZANNA SHERRY, A HISTORY AMERIcAN CoN5TITUTION CONsrrur=oN 376-85 (1990). (1990). On this specific HIsTORY OF THE AMERICAN specific point see id. id. at at & Michael C. Don, Doff,Levels Generalityin the Definition Definition ofRights, 57 381-83; Laurence H. Tribe & Levels of Generality Rights, 57 cf Chemerinsky, U. Cm. CHI. L. REv. 1057 (1990); (1990); cf. Chemerinsky, supra supra note 73, at 1241 (addressing problems problems with identifying who Framers were were or what they intended). (1968). 79. 391 391 U.S. U.S. 145 (1968). 80. 391 U.S. at 156. 156. 81. See 391 U.S. U.S. at 153 n.20; see also Williams v. Florida, 399 U.S. U.S. 78, 92-99 (1970) (1970) (review"there is absolutely Amendment and concluding concluding that "there absolutely ing the history of the adoption of the Sixth Amendment no indication in 'the intent of the framers' of an explicit decision to equate equate the constitutional and and common law characteristics characteristics of the jury"). See, eg., U.S. 522, 536-37 justifications 82. See, e.g., Taylor v. Louisiana, 419 U.S. 536-37 (1975) (1975) (noting that the thejustificatlons for excluding women from juries juries no longer longer exist). exist). Chemerinsky, supra 1228-30 ("Judges applying the framers' intent are 83. Chemerinsky, supra note 73, at 1228-30 are striking down statutes statutes enacted enacted by popularly elected legislatures based on the desires of men who lived lived two centuries ago.").


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84 the history of England, or the history of English-speaking peoples, peoples,84 to several jury cases divine the content of the right of jury jury trial. Thus, 'several recount the "frequently "frequently told" history of trial by jury, a history with "impressive credentials traced Carta.' ' 85 Like the "impressive credentials traced by many to Magna Carta."8S Framers' intent, this appeal countermajoritarian. Framers' appeal to history too seems countermajoritarian. By presented itself. If one wants to By now a tremendous tremendous irony has presented show that judicial decisions are majoritarian, majoritarian, the constitutional constitutional text text and its history and prehistory make for a bad start. The irony is that the sources sources discussed thus far are the very sources by which commencommenconcerned about the countermajoritarian countermajoritarian nature of judicial tators most concerned 86 These are the sources that decisions would have courts abide. 86 in the These eyes of many properly constrain constrain majority will. And yet these "legiti"legiti87 mate" sources sources seem plainly countermajoritarian. countermajoritarian. 87 Interestingly, the Court rarely rarely considers itself bound by the sources discussed thus far. The discussion regarding regarding "all" "all" in the text text 88 Another arises in of the Sixth Amendment Amendment provides provides one example.88 the context of whether juries must number number twelve and the impact impact of preconstitutional Williams v. Florida Florida8899 the preconstitutional history on the question. In Williams considerable eviCourt examined examined that history and, despite finding considerable preconstitutional practice requiring a jury of twelve members, dence of preconstitutional 90 Although historical pracheld that twelve jurors were not required. 90 91 tice was uniform, it was but a "historical "historical accident." accident."91 The number number or twelve, it turns out, was serendipity, and at best indicated indicated "mystical or 84. Eg., Duncan, 391 U.S. at 151-54. E.g.• Williams, Williams. 399 U.S. at 86-99; Duncan. 151-54. One particularly wonders "English-speaking peoples" peoples" (alone) will seem as less and less of the how relevant relevant the history of "English-speaking population is in fact descended descended from such people. 151. 85. Duncan, Duncan. 391 391 U.S. 'at 'at 151. Bork, The Constitution. Constitution, Original OriginalIntent Intent and and Economic Economic Rights, 86. See Robert Robert H. Bork. Rights. 23 SAN DIEGO L. REv. 823. 823, 826 (1986) (1986) ("The only way in which the Constitution can DIEGO can constrain judges is if the judges judges interpret the document's words according according to the intention of those who drafted, Toward a proposed, and ratified its provisions and its various amendments."); Edwin Meese III, Toward Jurisprudence HARV. J.L. & & PuB. Jurisprudence of Original Original Intent, Intent. 11 HARv. PUB. POLY. POLY. 5, 5. 10 (1988) (1988) (arguing that judges original understanding). should construe Constitution in light only of text and original 87. II am perfectly perfectly aware that the response of such scholars scholars would be that sticking to these sources represents "legitimate" countermajoritarianism. countermajoritarianism, in the sense that the courts' role is to represents "legitimate" constitutional commands. This response, however, presents presents at least two enforce unequivocal unequivocal constitutional enormous problems. First, one might ask by what authority authority this countermajoritarianism countermajoritarianism is "legitimate." What majority decided opportunity to gitimate." decided that rule? No one alive today was afforded the opportunity sign on to the document. Second, Second, the response rests on the notion that text, intent, and so forth infra notes 370-72 are determinate, determinate, a notion even the Court seems seems to reject. See infra 370-72 and accompanyaccompanying text. 88. See supra supra note 77 and accompanying text; see also Taylor Taylor v. Louisiana, Louisiana, 419 U.S. U.S. 522 (1975) from juries). (1975) (discussing (discussing exclusion of women 'from 89. 399 U.S. U.S. 78 (1970). (1970). 90. 399 U.S. U.S. at 86-103. 86-103. 91. 399 U.S. 91. U.S. at 89.



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'12.' "92 "92 significance of '12.' superstitious superstitious insights into the significance Things become increasingly majoritarian majoritarian from this point forward. Let us next consider a complex of sources, all of which point to practices 'subsequent subsequent to ratification ratification of the Constitution. Although Although the categories are somewhat pliable, two suggest themselves, each containing containing a host of specific sources upon which the Court relies. First, there is postconstitutional postconstitutional history. The Court apparently apparently considers such evidence after evidence valuable because, "if they did X so soon after ratification, at the time of ratification the intent must have been X." ratification X. " Thus, while giving scant attention to the Senate's decision not to proDuncan pose an amendment amendment requiring trial by jury in the states, the Duncan Court gave weight to the fact that "[t]he "[t]he constitutions adopted adopted by the original guaranteed jury trial. Also, the constitution original States. guaranteed constitution of every State entering the Union thereafter in one form or another another protected protected criminal cases."93 cases."' 93 This evidence is more the right to jury jury trial in criminal majoritarian in nature, although majoritarian although one may question how well it stands the test of time. A close cousin cousin to postconstitutional postconstitutional history is custom or practice. Duncan Court continues continues its argument argument for imposing imposing jury trial Thus, the Duncan in criminal cases on the states: Jury trial continues to receive strong support. The laws of every State guarantee a right to jury trial in serious criminal cases; no State has disunderway to do so. pensed with it; nor are there significant movements underway Indeed, the three most recent state constitutional revisions revisions... . . . carefully preserved preserved the right of the94accused to have the judgment of a jury when when crime.94 tried for a serious crime.

This hardly is the language language of a court rushing to impose its will on a resistant majority. Rather, the Court here is lookifig lookiil.g directly directly to majority practice. History and practice refer to things that are measurable measurable to some extent, but the Court is even more enthusiastically enthusiastically majoritarian when examining examining less tangible evidence. Whenever Whenever a principle principle presents itself itself for which the Court seems to lack hard evidence, it puts its finger on on 95 the American Taylor v. Louisiana, Louisiana,95 in which the American pulse. So it was in Taylor Court confronted the question whether the Sixth and Fourteenth Fourteenth Amendments guaranteed a jury from which women had not been exAmendments guaranteed cluded. The Court described the "American "American concept" of a jury, which concept" ofajury, included "established tradition" tradition" that the jury be "truly "truly representaincluded an "established 92. 399 U.S. U.s. at 88. 93. (1968). 93. 391 U.S. 145, 153 (1968). 94. 391 U.S. at 154. 95. 419 U.S. 522 (1975). (1975).


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tive of the community."96 community. ' 96 Excluding "at Excluding particular groups would be "at war with our basic concepts concepts of a democratic society and a representarepresentative government."97 government. ' 97 Whether we see it as convincing convincing the people or or assessing their views, the Court is clearly attempting to attempting to tie itself to majority will. Most remarkable, to remarkable, perhaps, is the extremely majoritarian source to Court which the vast majority of the opinions ultimately lead. The Court turns time and again to a head count of states to discern the majority polling, and it is a techpractice. My own name for this practice practice is polling, nique prevalent throughout Duncan throughout constitutional cases. 98 Thus, in Duncan the Court concluded by assuring the states, albeit in a footnote, that its decision would have little impact because because "most of the States have provisions for jury trials equal in breadth to the Sixth Amend.... ."99 "99 In Williams v. Florida Florida Justice Harlan, dissenting, acment .... cuses the majority of resolving the case "based ''based on a poll of state 10 In Taylor practice" saying "[t]his "[tlhis is a constitutional constitutional renvoi. renvoi'"lClO Taylor v. v. practice" Louisiana, the Court states that "women are qualified as jurors in all Louisiana, Court "women on the States. The jury-service statutes statutes and rules of most States do not on presently before the their face extend to women women the type of exemption presently Court .... .... "101 -o0 Polling is not the only way to assure that consensus consensus supports supports the Court's results. The Court similarly recognized similarly relies upon nationally recognized standards and even upon changing societal societal norms. Taylor Taylor stands out standards then-existent in this regard, for in deciding to invalidate Louisiana's then-existent 96. 419 U.S. at 527. Justice Scalia's heavy commentary on this heavy use of tradition has prompted prompted commentary Tradition, Precedent, aspect of constitutional interpretation. See David A. Strauss, Tradition. Precedent. and Justice Justice Scalia, 12 CARDOZO CARmOzo L. REv. 1699 (1991). An excellent Scalia. 1699 (1991). excellent recent discussion of the use of tradition tradition in interpreting the Constitution Tradition and Insight: A Theory of CogniConstitution is Rebecca L. Brown, Tradition tive Interpretation (unpublished with author). Brown examines possible ra(unpublished manuscript, on file with tionales for the use of tradition in constitutional constitutional adjudication and finds them them generally wanting, at least to the extent tradition tradition is deemed determinative. determinative. Rather, Brown argues, tradition plays a role because "[b]oth the constitutional interpreter and the document because "[b]oth constitutional interpreter document itself are creatures creatures and creators interpretative endeavor." endeavor." ld. Id. at 5. "Tradition must be tradition, which which they bring to the interpretative ators of tradition, neither defined nor deified." deified." ld. Id 97. 419 U.S. U.S. at 527 (quoting Smith Smith v. Texas, 311 U.S. U.S. 128, 130 (1940)). (1940». 98. I commend Steve Winter's excellent discussion discussion of this majoritarian majoritarian approach approach in Winter, Judicial Judicial Review, Review. supra supra note note 40. 99. 391 U.S. 145, (1968). 145, 158-59 158-59 n.30 (1968). (1970) (Harlan, J., dissenting). 100. Williams v. Florida, 399 U.S. 78, 78, 122 (1970) 101. 419 U.S. also Burch v. Louisiana, 441 U.S. 130, 138 (1979) 101. U.S. at 533 n.13; see also (1979) (noting that only two states allow nonunanimous verdicts by six-member six-member juries in trials of nonpetty offenses near-uniform judgment of the Nation provides and stating that "this "this near-uniform provides a useful guide in delimiting the line between those jury practices that are constitutionally constitutionally permissible and those that are not"); Baldwin v. New York, 399 U.S. 66, 70-73 (1970) not"); Baldwin (1970) (noting that almost almost all states provide provide a jury "[t]his near-uniform of jury trial when the penalty penalty exceeds exceeds six months and stating that "[t]his near-uniform judgment judgment of criterion by which a line could the Nation furnishes us with the only objective criterion could ever be drawn drawnon the basis of the possible possible penalty alone alone - between offenses offenses that are and that are not regarded as as 'serious' 'serious' for purposes of trial by jury").


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rule requiring women to opt in for jury service, despite judicial approval of such a rule several years earlier, the Court went on at length length to discuss the changing role of women in American society, complete complete 102 with citations to federal Bureau of Labor Statistics reports.102 Of course, not all of the Court's Court's bases for decision easily can be called majoritarian countermajoritarian. The Court relies heavily majoritarian or countermajoritarian. on precedent (although it will abandon precedent precedent when changing times require10l033 and will even cite precedent precedent for abandoning prece1 4 Whether or not precedent dent). precedent is majoritarian majoritarian depends in part on dent).I04 what that precedent said. As Professor Professor Luban recently observed, observed, courts tend to cite newer precedent precedent when possible, eliminating eliminating the IOS5 Similarly, problem problem of being controlled by decisions from the past.10 parts of decisions built on reason or common sense present a difficult difficult question presume the majority is raquestion - although, to the extent we presume tional, this appears to be an appeal to that majority's better better 06 judgment. 106 Actually, the latter point helps categorize categorize a host of stray sources the Court uses in reaching decisions. The Court relies heavily in the jury cases upon expert opinions and experiments, for example to determine the size of a jury necessary necessary to foster deliberation. deliberation.10l077 The Court Court commonly will cite professionally recognized standards or statements professionally recognized 102. 419 U.s. U.S. at 531-37 531-37 & & n.17. Williams, 399 U.S. at 90-93 (rejecting precedent 12-person juries). 103. See Williams, precedent requiring requiring 12-person juries). A recent thoughtful entry on the appropriate S. cent thoughtful appropriate size of juries is George C. Thomas III & Barry S. Pollack, Rethinking Guilt, Rnv. 1 (1992) Guilt, Juries, Juries, and Jeopardy, Jeopardy, 91 MIcH. MICH. L. REv. (1992) (arguing (arguing from an approach approach very different different from the Court's that the Court's decisions on jury size are correct). Michael J. Gerhardt, ConstitutionalDecisionmaking and 104. See Michael Gerhardt, The Role of Precedent Precedent in Constitutional Decisionmaking and Theory, 60 Goo. GEo. WASH. L. REv. 68, 76 (1991) (1991) (arguing that no clearly applicable precedent ever ever Theory, forced Court into a decision it did not want to reach). Traditionalism,43 STAN. STAN.L. REv. RFV. 1035, (1991); see also also 105. See David Luban, Legal Traditionalism, 1035, 1043 (1991); Interpretation: An Empirical in Statutory EmpiricalAnalysis, Nicholas S. Zeppos, The Use ofAuthority in Statutory Interpretation: Analysis, 70 TEXAS comprehensive empirical TEXAS L. REv. 1073 (1992). (1992). Professor Zeppos offers a comprehensive empirical study of the sources construction cases. In that context sources that courts actually rely rely upon in statutory construction context precedent precedent is the most dominant source of authority. Id. 1093. A similar study in the arena of constituId. at 1093. constituuseful. tional interpretation interpretation would be extremely nseful. ' 106. One One "source" "source'" possibly omitted from the above above discussion is "reason," "reason," which some use to refer to moral philosophy. I have might also nse have trouble trouble calling this a "source" "source" of decision, because II agree with John Hart Ely "reason alone can't tell you anything: it can perhaps becanse Ely that "reason can only connect supranote 5, at 56. Ely goes on to argue that there connect premises premises to conclusions." conclusions." ELY, supra is no more one correct moral moral philosophy philosophy than there there is one right legal answer. Inevitably, then, a judge's own values values become intertwined in reasoning. Whether reason is majoritarian majoritarian or countermajoritarian ultimately countermajoritarian ultimately will vary depending depending upon whether whether the judge's judge's values values track the infra notes accompanying text. majority's. See infra notes 185-88 185-88 and accompanying (1978) (citing empirical empirical studies on the 107. See Ballew v. Georgia, 435 U.S. U.S. 223, 231-39 (1978) "[w]e considered them carefully because effects of jury size size and stating that "[ w]e have considered because they provide provide the smaller and smaller juries will be only basis, besides judicial judicial hunch, for a decision about whether smaller fu1fi11 the purpose and functions of the Sixth Amendment"); Williams v. Florida, 399 U.S. U.S. able to fulfill U.S. 145, 78, 101-02 101-02 (1970) (1970) (citing studies on the effects of jury size); Duncan v. Louisiana, 391 U.S. (1968) (citing study in defense of use of lay juries). 157 (1968)




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from professional professional organizations. organizations.10lOS8 These These sources sources seem seem on on their their face face from nor countermajoritarian. countermajoritarian. When, for for neither apparently apparently majoritarian majoritarian nor neither example, Hans Hans Zeisel Zeisel publishes publishes a soon-to-be-famous soon-to-be-famous study study on on jury jury bebeexample, 10 9 we do havior,l09 do not not necessarily necessarily have have any any clue clue what what the majority majority might might havior, think of of the the study study or or his his conclusions. conclusions. Characterizing Characterizing "expert" "expert" sources sources think majority of the the people people often often will will not not requires us to to understand understand that the majority requires have thought thought through through a particular particular issue. When the Court is grappling grappling have with a technical technical issue unlikely unlikely to have have seized seized clearly clearly the the interest interest of the with majority, it does does precisely precisely what what we we idealize idealize a legislature legislature as doing: doing: the majority, Court turns to to experts experts for advice. Thus, Thus, the the Court Court reads reads and and cites Court studies, standards, standards, and experiments. experiments. Like Like a legislative legislative committee, the studies, result Court engages engages the assumption that the majority would want a result Court based on study and and reason. based one is skeptical skeptical about about judicial judicial assessment assessment of majoritarian majoritarian Even if one are that judicial concerns, one simply cannot ignore fact judicial decisions the simply cannot ignore concerns, written for a public audience. Judicial Judicial opinions opinions make clear clear that the written Court perceives perceives the need, if not to poll the majority, then at least to persuade it. The persuasion function explains the majoritarian majoritarian nature persuade of several aspects aspects of the judicial judicial opinion. Appeals Appeals to common sense and reason, discussed above, fit into this category. So too does frequent citation to sources that are not thought of as typical judicial authority, such as expert analyses. But perhaps no part of an opinion is so easily overlooked as the statement of the facts. Review of the statement statement of facts suggests suggests strongly a judicial effort to persuade a broad audience audience that it has 110 for Louisiana,110 Duncan v. Louisiana, example, reached the correct decision. In Duncan the Court imposed the right to trial by jury in criminal cases on the states; the facts underscore underscore the need for jury review. The story in Duncan Duncan is about an older black cousin who seeks to intervene in a developing fracas between black and white youths. Duncan is ultimately convicted for assault: the white youths claimed Duncan hit one of them, while the black youths claimed Duncan merely laid a 111 Whose version is true is far from clear, hand on the victim's arm. arm."' but the Court's statement of the facts suggests to me that the Court and of medical and (1973) (citing (citing positions of 410 U.S. U.S. 113, 113, 141-47 (1973) Wade, 410 108. See, eg., Roe Roe v. Wade, See e.g., CONSTITUTIONAL DIALoUIS FISHER, CoNSTITUTlONAL see also also LoUIS other on abortion); see other professional organizations on least to Justice back at least LOGUES ("The practice practice of citing professional journals goes back 23 (1988) (1988) (''The LOGUES 23 1920s."). in the 19205."). Brandeis in Brandeis HARRY Harry Kalven, HARRy Zeisel's now-famous study with Harry cases rely on Zeisel's 109. Several Several jury cases 109. at 238; 238; U.S. at See Ballew, Ballew, 435 U.S. (1966). See JURY (1966). THE AMERICAN AMERICAN JURY ZEISEL, THE KALVEN, & HANs HANS ZEISEL, JR. & KALVEN, JR. 101 n.49. n.49. 399 U.s. U.S. at 101 Williams, Williams, 399 (1968). 145 (1968). 110. 110. 391 391 U.S. 145 U.S. at at 146-47. 146-47. 111. 391 391 U.S. 111.


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doubts the result in the case and feels that jury factfinders chosen from community can best avoid such dubious results (perhaps an the broad community overly optimistic conclusion). This persuasive function of opinions also comports with a majoritarian approach to resolving problems. Just as legislatures may majoritarian turn to experts for information to resolve questions about which the majority may have no clear preference, so too the legislature may seek course of action. Even taking to persuade the majority of a certain course into account current cynicism regarding the tendency of politicians simply to read polls to determine a course action,1 12 the more politcourse of action,112 ical branches at times will inevitably lead by example. Looking to reliance on experts, does not undermine undermine the statements of facts, or reliance notion of judicial majoritarianism. Results are not majoritarian because reached solely with reference reference to majoritarian majoritarian sources. Rather, judicial results are as likely as legislative ones to be majoritarian in part because because they employ similar techniques techniques for resolving questions.

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Determining precisely why a judge, or even a court, decided a case Determining 13 Judicial extremely difficult.1ll3 in a particular fashion is, of course, extremely opinions provide surprisingly little guidance in this inquiry. Few of them are models of clarity, and fewer still betray thoughtful organization. Rather, the decisions tend to be a hodgepodge of a familiar series 4 Any 114 of arguments arguments cast together in a somewhat loose form.11 survey of the type I have engaged engaged in is susceptible, susceptible, therefore, to the claim that judicial opinions seldom betray betray the majoritarian majoritarian or countermajoritarian nature of the true basis for judicial judicial decision. Judicial majoritarian nature opinions may be nothing more than post hoe rationalizations for judimay hoc rationalizations judges' own values. At the least, discerning cial imposition of the judges' which many arguments arguments offered offered in an opinion proved proved determinawhich of the many tive generally generally is impossible. All this and more is true, and yet the preceding exercise exercise is a telling one nonetheless. First, nothing nothing said above above particularly particularly distinguishes courts governmental bodies such as legislatures. Likewise, courts from other governmental Likewise, 112. 112. See, See, eg., e.g., Jonathan Jonathan Peterson, Peterson, Washing OurHands Hands of ofPolitics, Politics, L.A. TIMEs, TIMES, May 20, 1992, at at Al Al ("T]he ("[T]he public's cynicism cynicism may may come come from the practice practice of modem modem politics, a dubious dubious art IIrt that that often seems driven driven more more by opinion opinion polls, polls, money money raising raising and and manipulation manipulation than heartfelt heartfelt leadership ). leadership .... .•••"). 113. CHANGE, RHETORIC, 113. STANLEY STANLEY FISH, FIsH, DOING DOING WHAT WHAT COMES CoMES NATURALLY: NATURALLY: CHANGE, RHETORIC, AND AND THE THE PRACTICE 372-435 (1990); (1990); Zeppos, PRACTICE OF OF THEORY THEORY IN IN LITERARY LITERARY AND AND LEGAL LEGAL STUDIES STUDIES 372-435 Zeppos, supra supra note note 105, Constructivist Coherence Coherence Theory of lOS, at at 1078-80; 1078-80; see also Richard Richard H. Fallon, Jr., A A Constructivist of ConstituConstitutional 1189 (1987) tional Interpretation, Interpretation, 100 100 HARV. HARV. L. L. REv. REv. 1189 (1987) (arguing that judges judges and lawyers lawyers should employ employ aa hierarchy hierarchy of sources sources in addressing addressing legal legal questions). questions). 114. 114. See See Fallon, Fallon, supra supra note note 113; 113; Zeppos, Zeppos, supra supra note 105, lOS, at 1078-80 1078-80 (discussing (discussing wide wide range of of writing writing relied relied upon upon by by courts courts in in deciding statutory statutory interpretation interpretation questions). questions).



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judicial judicial opinions that that appear appear to rest on on majoritarian majoritarian sources sources cannot cannot be be discounted discounted simply simply because because we are are unsure unsure which which argument argument ultimately ultimately was persuasive persuasive to the the court, or even even if a written written argument argument mattered mattered to an an individual individual judge judge at all. If H the argument argument can can be sustained sustained on on majoritarian majoritarian terms terms -- if if it it appears appears to respect respect majority will will -- it is majoritarian. any rate, examining examining the sources sources of of constitutional constitutional demajoritarian. At any cision makes increasingly apparent makes increasingly apparent the extent extent to which which judges judges seek to not to rely upon them appeal upon them entirely. appeal to majoritarian majoritarian values, if i&L iii. The pervasiveness pervasiveness of the majoritarian majoritarian approach. approach. The prior prior secused to assess tion illustrated illustrated the the wealth of of judicial judicial standards assess and and majoritarian preferences. preferences. The The section section relied heavily heavily on on write into law majoritarian Sixth Amendment Amendment jury jury trial trial cases, cases, and and one might might object that that the jury right by by its nature nature seems seems majoritarian. Juries Juries permit community community valval15 115 Perhaps ues to play a role even in judicial judicial decisions.' decisions. Perhaps a more more accurate assessment majoritarian nature of of judicial judicial decisionmaking decisionmaking assessment of the majoritarian must confront confront some right with a less majoritarian cast. other The dichotomy between between the jury jury as a majoritarian majoritarian right and other constitutional constitutional rights is, however, false. Although Although the jury right right seems majoritarian values, many of the rights in the peculiarly addressed to majoritarian peculiarly addressed Bill of Rights share this cast. Indeed, in a recent recent article article Professor Professor Akhil Amar Amar makes makes just this point regarding the original original intent underlying the Bill Bill of Rights. Amar Amar concludes concludes that "[t]he "[t]he essence of the Bill Bill of Rights was more structural than not, and more majoritarian majoritarian than 16 counter." Amar saves for another day analysis of the extent to counter."116 structural which modem modem interpretation interpretation has strayed from the original original structural and somewhat somewhat majoritarian majoritarian nature of the manifesto of popular limits interpreted does differ on governmental governmental power. The Bill of Rights as interpreted differ from what those who framed or ratified the original constitutional constitutional amendments amendments might have imagined. But it nonetheless nonetheless is true - indeed it is evident evident from the text of those rights - that many many of them were intended intended to be majoritarian majoritarian or popular in nature. nat~e. constitutional rights, That the Court, in defining the nature nature of constitutional majoritarian sources of decision should thus come as often refers to majoritarian little surprise. As indicated earlier, many judicial decisions begin and and decisions."1177 end with the principle of deference to governmental decisions. deference is deemed When deference deemed inappropriate, the court cOurt turns to broader broader majoritarian desire might be. This section briefly evidence of what majoritarian 115. 115. 116. 116. 117. 117.

See Amar, supra supra note 72, at 1182-99. Id. at 1133. 1133. 1d. supra notes 63-71 63-71 and accompanying accompanying text. See supra


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tours some other other rights rights in in order to to demonstrate demonstrate the pervasiveness pervasiveness of of tours the majoritarian majoritarian approach. the Perhaps the easiest easiest example example to to illustrate my my point point that the Supreme Court Bill of Rights from aa majoritarian Supreme defines much of the Bill 118 is the Eighth perspective"" Eighth Amendment. As As judicially interpreted, interpreted, perspective the most most majoritarian majoritarian of all all rights rights seems to be the Eighth Amendthe 119 But the excessive ment's Cruel and Unusual Punishment Clause.119 ment's bail provision of that same amendment also is interpreted from from a bail amendment 120 perspective.120 majoritarian perspective. The majoritarian approach approach similarly is evident in a less expected The 118. Several readers suggested that the majoritarian majoritarian flavor flavor II identify identify in Court Court decisions is 118. primarily aa phenomenon phenomenon of of the the Burger Burger and and Rehnquist Rehnquist Courts. Courts. Clearly those those Courts have been primarily reluctant to to uphold uphold claims claims of of constitutional constitutional rights. See generally generally Sherry, Sherry, supra supra note note 52; 52; Stone, Stone, reluctant rights. See supranote note 63. 63. Equally Equally clearly clearly this this trend trend mirrors mirrors popular popular thought. See Stone, supra supra note 63, 63, at supra 22-23 ("The ("The shift shift is is due, due, in in part, part, to to aa more more general general shift shift in in our our national national politics and attitudes."). 22-23 This evidence evidence standing standing alone, alone, however, however, supports supports my my thesis. thesis. The The remaining remaining issue issue is is whether whether the This Court mirrored mirrored society society at other times. times. I believe the breadth of sources I discuss suggests it did, Court although aa definite definite answer answer would would require require an an even more systematic systematic comparison of judicial decialthough even more sions and popular views over time. time. The The Court's practice, however, is generally Court's practice, however, is generally to rule against sions and popular views over claims of of constitutional constitutional rights. rights. See supra supra note note 63 (discussing Dean Stone's study). 63 (discussing claims 119. The The Court Court has has held held that that punishments punishments challenged under the clause are to be reviewed by 119. applying "objective "objective indicia indicia that the public public attitude attitude toward toward aa given given sanction." sanction." McCleskey applying that reflect reflect the McCleskey v. Kemp, Kemp, 481 279, 300 (1987) (quoting (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). Rather Georgia, 428 (1976». Rather v. 481 U.S. U.S. 279, 300 (1987) Gregg v. than construing the clause clause solely forbidden when the clause was than construing the solely with with regard regard to to punishments punishments forbidden ratified, the dynamic" interpretive interpretive technique, technique, the keystone of ratified, the Court Court has has utilized utilized aa "flexible "flexible and and dynamic" which involves involves looking looking to to the prevailing standards standards of of "modem "modem American American society as a whole." which the prevailing whole." Stanford v. Kentucky, 492 361, 369 369 (1989). (1989). The The Court Court also has described its Eighth v. Kentucky, 492 U.S. U.S. 361, Stanford Amendment analysis analysis as one "recogniz[ing] "recogniz[ing] the the 'evolving 'evolving standards standards of decency Amendment as one decency that mark the progress of of aa maturing society.'" Ford Ford v. v. Wainwright, maturing society.''' Wainwright, 477 U.S. U.S. 399, 399, 406 (1986) (1986) (quoting Trop progress v. v. Dulles, Dulles, 356 356 U.S. U.S. 86, 86, 101 101 (1958) (1958) (Warren, (Warren, C.J.)). C.J.». The Court has used this approach The Court has used this approach to to examine examine the the constitutionality constitutionality of of a number number of provisions provisions under 111 S. Ct. 2680 (1991) (holding e.g., Harmelin Harmelin v. v. Michigan, Michigan, 111 2680 (1991) (holding under the the Eighth Eighth Amendment. Amendment. See, eg., that life sentence without parole parole for for possession than 650 that imposition imposition of of aa mandatory mandatory life sentence without possession of more than 650 grams of not violate Eighth Amendment); grams of cocaine cocaine does does not violate the the Eighth Amendment); Thompson Thompson v. Oklahoma, 487 487 U.S. U.S. 815 opinion) (holding (holding that 815 (1988) (1988) (plurality (plurality opinion) that the the death death penalty penalty is is cruel cruel and unusual as applied to an individual was under time of offense); Enmund an individual who who was under age age 16 16 at at the the time of the the offense); Enmund v. Florida, 458 U.S. U.S. 782 (1982) (holding that (1982) (holding that the the Eighth Eighth Amendment Amendment prohibits prohibits imposition imposition of of the the death death penalty penalty upon one one who to take take life, life, nor nor intended intended to to take life); life); Coker Coker v. Georgia, Georgia, 433 433 who neither neither took took life, life, attempted attempted to U.S. U.S. 584 584 (1977) (1977) (plurality (plurality opinion) opinion) (holding (holding that that imposition imposition of of the the death death penalty penalty for the the rape rape of of an adult an adult woman woman constitutes constitutes cruel cruel and and unusual unusual punishment). punishment). Polling Polling generally generally is determinative determinative in these Indeed, the these cases. cases. Indeed, the differing differing conclusions conclusions reached reached by by majority majority and dissenting opinions, opinions, particularly in close state statutes ticularly in close cases, cases, often often turn tum on on conflicting conflicting characterizations characterizations of of the the state statutes polled. polled. See Stanford Stanford v. v. Kentucky, Kentucky, 492 492 U.S. U.S. at at 370-71 370-71 n.2 n.2 (five-to-four (five-ta-four decision); decision): Thompson Thompson v. Oklahoma, Oklahoma, 487 at 829 829 n.29 n.29 (plurality (plurality opinion); opinion): 487 487 U.S. U.S. at at 848 848 (O'Connor, (O'Connor, J., J., concurring); concurring): Enmund Enmund v. 487 U.S. U.S. at Florida, Florida, 458 458 U.S. U.S. at at 793 793 n.15 n.15 (five-to-four (five-ta-four decision); decision): cf cj Ford Ford v. v. Wainwright, Wainwright, 477 477 U.S. U.S. at at 431-33 431-33 (Rehnquist, (Rehnquist, J., J., dissenting) dissenting) (pointing (pointing out out that, that, in in relying relying on on state state legislation legislation to to prohibit prohibit execution execution of ofthe the insane, insane, the the majority majority fails fails to to distinguish distinguish the the Florida Florida statute statute it invalidates invalidates from from the majority of ofstate state statutes statutes cited, cited, which, which, like like Florida's, Florida's, leave leave insanity insanity determinations determinations to the executive executive branch branch or or the the prisoner's prisoner's custodian). custodian). 120. if greater greater than than necessary necessary to to ensure ensure aa defendant's defendant's presence presence atat 120. Bail Bail is is considered considered excessive excessive if trial. trial. Stack Stack v. v. Boyle, Boyle, 342 342 U.S. U.S. 1, 1, 55 (1951). (1951). But But that that amount amount itself itself is is considered considered against against the the norm norm of ofbail bail "usually "usually imposed" imposed" for for certain certain crimes. crimes. 342 342 U.S. U.S. at at 6. 6. But But see see United United States States v. v. Salerno, Salerno, 481 481 U.S. U.S. 739, 739, 754 754 (1987) (1987) ("Nothing ("Nothing in in the the text text of of the the Bail Bail Clause Clause limits limits permissible permissible Government Government consideration consideration solely solely to to questions questions of of flight."). flight.").



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setting: in in the guarantees guarantees of ofjudicial judicial process. 121 Admittedly, the the prisetting: of the the Supreme Supreme Court in in cases cases that that involve involve judicial judicial process process focus of mary focus adversary system system of justice justice and and the the system's system's goal goal of of finding finding is upon the adversary 122 In In interpreting interpreting these these guarantees, guarantees, however, the Supreme Supreme truth. 122 Court frequently turns turns to highly highly majoritarian majoritarian sources. In In Maryland Maryland v. Court 23 Craig, 1123 for example, the Court faced the question whether whether the the ConConCraig, prohibited the state state from employing employing a rule in a child child frontation Clause prohibited case that that the the victim victim witness testify outside the defendant's defendant's physiabuse case presence by one-way one-way closed circuit circuit television. In In holding that that the cal presence Confrontation Clause Clause does not categorically categorically prohibit prohibit such a rule, the Confrontation "rigorous testing" Court analyzed analyzed what what was required required for "rigorous testing" of evidence evidence Court 124 "adversary proceeding."' proceeding."124 its analysis of what the As part of its in an "adversary state's adversary adversary system requires requires generally, generally, the the Court Court turned to the the state's 125 12S Court interest, the the state's validating In interest In validating Court interest in its system. relied upon upon numerous numerous expert expert and majoritarian majoritarian sources, sources, including the relied "a significant majority of States has enacted enacted [similar] [similar] statfact that "a 1 26 a report of the Maryland-state utes,"' utes,"126 Maryland-state Governor's Governor's Task Force on on 127 a brief for the American American Psychological Abuse,127 Psychological Association Association as Child Abuse, 128 and state amicus curiae, experts' experts' opinions, and state court court decisions. decisions. 128 interpretation of Majoritarian Majoritarian sources sources stand at the heart heart of judicial judicial interpretation of many other "judicial process" process" guarantees. The Court's double jeopjeop121. U.S. CONST. CoNSf. amend. amend. VI (confrontation); amend. V (double jeopardy); jeopardy); amend. amend. 121. See, e.g., eg., U.S. VI (right to counsel). counsel). 122. See Gideon Gideon v. Wainwright, Wainwright, 372 U.S. U.S. 335, 335, 344 (1963) (1963) (stating (stating that, "in "in our adversary system of criminal criminal justice, any person haled haled into court, court, who who is too poor to to hire a lawyer, cannot cannot system U.S. Maryland v. Craig, 497 U.S. be assured a fair trial unless unless counsel is provided for him"); see also Maryland (1990) ("The central concern 836,845 concern of the Confrontation Clause is to ensure the reliability of of 836, 845 (1990) subjecting it to rigorous testing in the context of an the evidence against a criminal criminal defendant defendant by SUbjecting evidence against fact."); Taylor adversary adversary proceeding proceeding before the trier of offact."); Taylor v. Illinois, 484 U.S. 400, 408-11 (1988) (1988) system" (characterizing present witnesses as "an "an essential attribute of the adversary adversary system" (characterizing the right to present adversary process and balancing it against against the need for procedural rules without which "[t]he adversary (1987) ("The effectively"); Kentucky [likewise] could could not function effectively"); Kentucky v. Stincer, 482 U.S. 730, 737 (1987) 'funcprotected by the Confrontation cross-examination, protected right to cross-examination, Confrontation Clause, thus is essentially essentially a 'functional' right designed to promote reliability in the truth-finding functions of a criminal criminal trial."); (1984) (holding that the standard U.s. 668, 696 (1984) standard for determining Strickland v. Washington, 466 U.S. "whether ... ineffective assistance of counsel counsel is "whether ... the result of the particular particular proceeding is unreliabreakdown in the adversarial ble because because of a breakdown adversarial process"); process"); Kirby v. Illinois, 406 406 U.S. 682, 689 defendant need an attorney indictment does a defendant attorney to (1972) (1972) (plurality opinion) (noting that only after indictment criminal justice.... contend with "our whole system of adversary justice.... [and] the prosecutorial prosecutorial forces adversary criminal society"). organized society"). of organized U.S. at 840. 123. 497 U.S. 123. 124. 497 U.S. at 845. U.S. at 852. 125. 497 U.S. 126. 497 U.S. U.S. at 853. 127. 497 U.S. U.S. at 854. (1987) (relying on v. Arkansas, 483 U.S. 44, 57-60 (1987) 128. 497 U.S. at 853-57; see also Rock v. state practices and expert opinions regarding the reliability of hypnosis); Crane v. Kentucky, 476 "the statutory and decisional law of virtually every State in the (1986) (relying on "the U.S. 683, 689 (1986) U.S. Nation").


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completely majoritarian; a court first inardy jurisprudence is almost completely quires whether whether the sentence sentence or retrial is consistent with legislative quires intent, 129 for the Double Jeopardy Clause is a bar on courts and proseintent,129 130 Similarly, extension of the right to cutors, not legislatures. 13o counsel 3 to state proceedings in Gideon Gideon v. v. Wainwright Wainwright1 1311 was premised in part majoritarian arguments,132 arguments, 32 and Gideon Gideon had the support of a great on majoritarian 33 Subsequent number of of states states as as amici amici curiae. curiae.1133 Gideon the Court Court Subsequent to Gideon number assessed the breadth of the right to counsel with a careful eye on the 134 government. 134 of state state government. needs of the needs right and associated with that right costs associated and the The First Amendment may strike some as the most difficult difficult 35 but even amendment to frame from a majoritarian majoritarian cast, amendment cast,135 here we find several instances in which constitutional constitutional protections seem to derive majoritarian preferfrom majoritarian majoritarian sources or to take into account majoritarian ences. The The entire entire concept concept of permitting the regulation of obscenity is is ences. 136 extremely majoritarian. extremely majoritarian. 136 Time, place, and manner regulation also 129. Ohio v. Johnson, ("[T]he question under the Double Jeopardy 129. Johnson, 467 U.S. 493, 499 (1984) (1984) (u[T]he Jeopardy Clause whether whether punishments are 'multiple' is essentiaIly essentially one one oflegislative of legislative intent .... ."); "); Missouri Clause punishments are intent •••• v. Hunter, Hunter, 459 (1983) ("[T]he prevent v. 459 U.S. U.S. 359, 366 (1983) (u[T]he Double Jeopardy Clause Clause does no more than prevent the sentencing sentencing court from prescribing the prescribing greater punishment than the legislature legislature intended."); intended."); see also Albernaz v. United (1981). also A1bernaz United States, 450 U.S. 333, 333, 340-42 (1981). 130. As the court explained in Brown v. Ohio: Ohio: originally to embody the protection common-law pleas of of Because it was designed origina11y protection of the common-law Amendment double jeopardy guarantee serves former jeopardy... jeopardy •.• the Fifth Amendment serves principally principaIly as a restraint on courts courts and restraint on and prosecutors. The legislature remains free under the Double Jeopardy Jeopardy clause to define crimes crimes and to define and fix punishments; punishments; but once the legislature legislature has acted courts may clause not impose more more than one punishment for the same offense and prosecutors prosecutors ordinarily may not attempt to secure that punishment in more than one trial. 432 U.S. 161, 161, 165 legislature specifically 432 U.S. 165 (1977) (1977) (citatidns (citations omitted). omitted). Conversely, Conversely, "[w]here... U[w]here ••• a legislature specifically authorizes statutes.., authorizes cumulative cumulative punishment punishment under two statutes ... the prosecutor prosecutor may seek and the trial court cumulative punishment jury may impose cumulative punishment under such statutes statutes in a single trial." trial." Missouri court or jury v. Hunter, 459 U.S. at 368-69. 368-69. 131. 131. 372 372 U.S. 335 335 (1963). (1963). 132. 132. For For example, the Court noted noted that "[flrom U[f]rom the very very beginning, beginning, our state and national national constitutions and laws have have laid great emphasis on procedural procedural and and substantive substantive safeguards safeguards constitutions and designed designed to assure assure fair trials... trials •...."" Gideon, Gideon, 372 U.S. U.S. at 344. 133. 133. Gideon, Gideon, 372 U.S. U.S. at 345 345 (noting that 22 states supported supported the right to counsel in state criminal criminal trials while while only three three states opposed). 134. See Scott 134. See Scott v. v. Illinois, Illinois, 440 440 U.S. 367, 373 (1979) (1979) (limiting (limiting the right right to counsel to defendants sentenced to to actual "any extension ants sentenced actual imprisonment imprisonment because because Uany extension would would create create confusion confusion and impose unpredictable, Argersinger v. necessarily substantial, substantial, costs on on fifty fifty quite diverse diverse states"); states"); Argersinger unpredictable, but necessarily Hamlin, (1972) (addressing Ham1in, 407 407 U.S. U.S. 25, 37 37 n.7 (1972) (addressing and dismissing dismissing as as unwarranted unwarranted argument argument in in concurrence providing counsel counsel to indigents indigents facing imprisonment imprisonment will will strain strain state state resources; resources; concurrence that providing counsel counsel required required to represent represent indigent indigent misdemeanants misdemeanants far far fewer than licensed attorneys attorneys in United United States). States). 135. 135. In In the the First First Amendment Amendment context, second second perhaps perhaps only only to small smaIl parts parts of equal equal protection protection jurisprudence, jurisprudence, the the Court Court most unabashedly unabashedly seems to take take on the majority majority in the name name of minorminority This is ity rights. rights. This is consistent consistent with with the general general thrust of this article; article; all all branches branches of government government likely likely will will be be countermajoritarian countermajoritarian in some some instances. Indeed, Indeed, the Court Court might might confine confine its its countermajoritarian special cases, legitimating legitimating these with with otherwise otherwise frequent frequent countermajoritarian activity to certain special reference to majority will. reference to 136. 136. See See Roth Roth v. v. United United States, 354 354 U.S. U.S. 476, 476, 485 485 (1957), (1957), overruled by by Miller v. California, California, 413 judgment that obscenity 413 U.S. U.S. 15 15 (1973) (1973) (referring (referring to to the "universal Uuniversa1judgment obscenity should should be be restrained" restrained" and and


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contains contains its share of majoritarian majoritarian analysis. Absent a claim claim that the speaker question speaker seeks to utilize a traditional traditional "public "public forum" forum" (itself a question 137 resolved reference to majoritarian majoritarian sources), sources),137 the Court merely asresolved by reference occurring and that the regulasures itself that no content regulation is occurring 138 tion is "reasonable" "reasonable" 138 - an approach highly highly deferential deferential to 139 government government and highly majoritarian. 139 None of this suggests that all Supreme Supreme Court decisions are majoritarian, or even rely on majoritarian majoritarian sources. The recent deci4° sions in the flag-burning cases l40 appear to provide provide an example to the contrary. Although the Court relied on a number of sources to resolve relied the cases -- including some that seem majoritarian including majoritarian14t 141 - evidence evidence sugciting international, federal, and state prohibitions). prohibitions). The three-part three-part test to determine whether whether expression constitutes constitutes obscenity obscenity asks contemporary community standards" standards" would (a) whether whether "the average average person, person, applying contemporary would find interest... (1) whether the work that the work, taken as a whole, appeals to the prurient interest •.. ; (b) depicts or describes, in a patently conduct specifically patently offensive way, sexual conduct specifically defined defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious serious literary, artistic, political, or scientific value. artistie,political,orscientificvruu~ v. California, 413 U.S. (1973) (citations Miller v. U.S. 15, 15, 24 (1973) (citations omitted). The The first prong of the Miller test, standards," is patently majoritarian. In "contemporary community standards," calling for the application of "contemporary addition, the nature of the test as a question of fact means that majoritarian values vruues will likely inform application application of the test as a whole through through the medium medium of a local jury. More recently, however, the Court has made made clear that, unlike unlike the inquiries under the first two prongs of the Miller test, the vruue value of the work as a whole must be assessed under national and not local Miller nationru and' standards. See Pope 500-01 (1987) U.S. 497, 5()()'()1 Pope v. Illinois, 481 U.S. (1987) ("The proper inquiry is not whether whether community would find serious... serious .•. value vruue in allegedly allegedly obscene obscene an ordinary member of any given community material, materiru, but whether a reasonable person would find such value vruue in the material, materiru, taken taken as a objectively evaluating whole."). One might question the degree to which a jury is capable of objectively evruuating a work's merit. See 481 U.S. at 504-05 (Scalia, (Scalia, J., concurring). concurring). (1983) 137. See, See, e.g., Perry Educ. Assn. v. Perry Local Local Educators' Educators' Assn., Assn., 460 U.S. U.S. 37, 45 (1983) (stating that traditionru traditional public public fora fora are those that "by long tradition tradition or governmental governmentW fiat have (1939) ("Wherever been devoted to assembly and and debate."); Hague Hague v. CIO, 307 307 U.S. U.S. 496, 515 (1939) ("Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public .... ). ...•"). U.S. 781, 791, (1989); Cornelius v. NAACP NAACP Legru Legal 138. Ward v. Rock Against Racism, 491 U.S. 791, (1989); & Educ. Fund, 473 U.S. 788, 808 (1985) (1985) ("The Defense & (''The Government's Government's decision to restrict access to a nonpublic forum need only be reasonable .....•.•"); Clark v. Community for Creative Nonbe reasonable U.S. 288, 298 (1984) ("[R]easonable time, place, or manner restrictions Violence, 468 U.S. (1984) ("[R]easonable restrictions on expresexpresconstitutionally acceptabl~"). acceptable."). sion are constitutionally accompanying text (discussing majoritarian 139. See supra supra notes 63-71 and accompanying majoritarian tilt to Court's approach constitutional cases). Thus, in United (1990) (pluUnited States v. Kokinda, 497 U.S. U.S. 720 (1990) (p1uapproach to constitutionru rality rWity opinion), the Court was was asked to determine determine whether whether postal postW regulations forbidding forbidding the solicitation of funds on postal "reasonable" time, place, and manner restrictions. The postW premises premises were "reasonable" concluded they were, focusing on the recent history of such regulations, 497 U.S. Court concluded U.S. at 731, 731, a "common analysis of disruption and delay attendant such such solicitation, 497 U.S. U.S. at 732-35, "common sense" sense" anruysis and the postal "empirical" study of the impossibility postW service's service's "empirical" impossibility of case-by-case regulation. regulation. 497 U.S. at 735. U.S. 735. (1990); Texas v. Johnson, 491 U.S. 397 (1989). (1989). 140. United States v. Eichman, ~ichman, 496 U.S. U.S. 310 (1990); 141. See Johnson, 141. Johnson, 491 U.S. U.S. at 408-10 408-10 (noting that no breach breach of the peace actually occurred and that the Court's opinion will not prevent states from preserving preserving the peace); peace); 491 U.S. U.S. at 411 411 (noting that federa1law federal law permits burning the flag as a means of disposal). The Court, however, expressly expressly disclaimed the relevance relevance of majority majority opinion to its decision in Eichman: Eichman:


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gests that the decisions went went against popular will. will. Alinost Almost two thirds thirds gests society appeared appeared to to support a constitutional constitutional amendment to ban flag of society 142 burning. 142 cases such as this, this, however, care is required required before labeling labeling Even in cases the result countermajoritarian. At the least, more a sophisticated the result countermajoritarian. sophisticated view of majoritarianism, taking into account the relative of preferof majoritarianism, strength of ences, is required. After the second second flag-burning decision - striking striking down aa congressional congressional statute -- there was a move in Congress to to down the Constitution to prohibit flag burning. The move ultimately amend the died. Given Given the high high profile profile of the the debate, debate, one suspects that congrescongresdied. sional action reflected sional action the will of constituents, which in turn raises interesting questions about what was going on. Because proposing a constitutional amendment amendment requires requires the assent of two thirds of the Conconstitutional gress, one possibility is that, despite majority support for an amendthe necessary necessary supermajority.143 supermajority. 143 sponsors could could not not muster muster the ment, sponsors ment, Second, the people may have initially believed Second, believed flag burning outside the scope of of constitutional constitutional protection, but changed changed their stance upon rescope flection and education. Thus the value of dialogue. Third, although flection and many people may have disfavored constitutional protection many people may have protection for flag burning, preference was perhaps preference of burning, their preference perhaps weaker weaker than the preference of l44 protection. 144 constitutional protection. those who those who favored favored constitutional At any Court undoubtedly At any rate, rate, the the Court undoubtedly will will hand down countermajoritarian decisions some of the time: the question is, how countermajoritarian We the Government's reassess [Johnson] [Johnson]in Congress' recent We decline decline the Government's invitation invitation to to reassess in light light of of Congress' recent recognition flag-burning.... of aa purported purported "national "national consensus" consensus" favoring favoring aa prohibition prohibition on on flag·burning •••• recognition of Even assuming suggestion that Even assuming such such aa consensus consensus exists, exists, any any suggestion that the the Government's Government's interest interest in suppressing more weighty weighty as suppressing speech speech becomes becomes more as popular popular opposition opposition to that that speech speech grows is foreign the First Amendment. foreign to to the First Amendment. 496 U.S. at omitted). 496 U.S. at 318 318 (citations (citations omitted). 142. See GEORGE GALLUP, PUBLIC OPINION 142. See GEORGE GALLUP, JR., JR., THE THE GALLUP GALLUP POLL: POLL: PUBLIC OPINION 1990, 1990, at 66 66 (1991) (1991) (showing flag burn(showing that, that, in in June June of of 1990, 1990, 66% 66% favored favored aa constitutional constitutional amendment amendment to to prohibit prohibit flag burning). Of course, this does not mean ing). or course, this does not mean the the majority majority necessarily necessarily disfavored disfavored the the Court's Court's result: result: the majority majority might might have have felt felt the the Court Court correctly correctly interpreted interpreted the the Constitution Constitution but but wanted wanted to amend amend the the Constitution Constitution for for that that reason. reason. This This seems seems unlikely, unlikely, however. however. 143. The 143. The vote vote in in the the House House of ofRepresentatives, Representatives, 254 254 in in favor favor of of the amendment amendment to 177 against, was short of was 34 34 votes votes short of the the two-thirds two-thirds majority majority of of each each house house needed to to approve a constitutional amendment. Amendment to Bar Flag Flag Desecration Desecration Fails Fails in the House, House, N.Y. amendment. Steven Steven A. A. Holmes, Holmes, Amendment TmEs, TIMES, June June 22, 22, 1990, 1990, at at Al. AI. The The amendment amendment fell fell nine nine short short of of the the necessary necessary two thirds in the Senate, Senate, with with 58 58 in in favor favor and and 42 42 opposed. opposed. Helen Helen Dewar, DeWar, Senate Follows Follows House in Killing Killing Flag Flag Measure, Measure, WASH. WASH. PoST, POST, June 27, 27, 1990, at A8. A8. 144. Many 144. Many of of the the representatives representatives whose whose votes votes helped helped to block block passage passage of of the the amendment amendment reported at their their constituents' constituents' apparent apparent lack lack of of interest. interest. Holmes, Holmes, supra note 143, 143, at at A14 A14 reported surprise surprise at ("Lawmakers of the amendment amendment ("Lawmakers and and political political strategists strategists said said mail mail and and telephone telephone calls calls in in favor favor of were were nowhere nowhere near near as as heavy heavy as as last last year year [following [following the the Johnson Johnson decision]."); decision]."); Tom Tom Kenworthy Kenworthy & & Paul Paul Taylor, Taylor, Opponents Opponents of ofFlag Flag Amendment Amendment Seeking Quick Kill on House House Floor, Floor, WASH. WASH. POST, POST, June June 19, 19, 1990, 1990, at at A8; A8; Susan Susan F. F. Rasky, Rasky, For For Flag Flag Vote, Vote. History History Won Over Over Political Political Risk, Risk, N.Y. N.Y. TIMES, TIMES, June June 23, 23, 1990, 1990, at at A6. A6. Of Ofcourse, course, the the decreased decreased public public clamor clamor in in favor favor of ofthe the amendment amendment could could reflect reflect either either aa change change in in view view or or merely merely a loss loss of of interest. interest.


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145 often? often?14S This abbreviated abbreviated tour through parts of the Bill of Rights demonstrates demonstrates that the Court often defines those rights from a highly majoritarian majoritarian perspective. perspective. The Court's decisions are hardly always always majoritarian. But employment of majoritarian majoritarian sources is unquestionably common. b. h. Results. Results. One might doubt the power of judicial use of of majoritarian sources majoritarian sources if courts systematically systematically reached reached results contrary to popular will. That perception, indeed, indeed, is the basis for the countermajoritarian difficulty. Nonetheless, this easy assumption assumption countermajoritarian about judicial trumping of majority will may well be incorrect. Courts may reflect majority majority will more often than we think. As with legislatures, precisely measuring the congruity between judicial judicial and public views is difficult. Yet some measure measure is possible. Public opinion polls establish that, contrary contrary to common common thought, judicial decisions often garner substantial substantial public support. A brief survey of fairly controverU.S. Supreme Court reveals that although there sial decisions of the U.S. may be sharp disagreement disagreement nationally nationally on these issues - hence hence the controversy -- a majority substantial plurality often favors the controversy majority or a substantial judicial outcome. 146 for example, Wade,146 is one of its The Court's decision in Roe v. Wade, controversial. Before the Roe decision, in 1972, fully sixty-four sixty-four most controversial. whether to have have an aborpercent of those polled agreed the decision whether 47 tion should be made solely by a woman and her physician.1147 Since Roe, at least a plurality plurality of those polled consistently consistently favor the Roe re148 Admittedly, the numbers numbers are close. But close is not sult. 148 145. In this regard, Johnson, hinting that 145. regard, see the opinion of Justice Justice Kennedy, concurring concurring in Johnson, the case case presented a rare instance instance in which binding binding legal precepts overcame overcame personal personal predilecpredilection. See Johnson, J., concurring) Johnson, 491 U.S. at 420-21 (Kennedy, J., concurring) ("The ("The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result."). 146. 410 U.S. U.S. 113 (1973). (1973). 1972-1977, at 54 (1978). (1978). 147. 1 GEORGE H. GALLUP, THE GALLUP POLL: PUBLIC OPINION OPINION 1972-1977, Although and believe their general general indication is telling, I share Although II find these polling polling data intriguing and Professor "[o]ne must be careful in evaluating poll results." results." GERProfessor Rosenberg's admonition admonition that "[o]ne ALD CHANGE? 236 ALD N. ROSENBERG, ROSENBERG, THE THE HOLLOW HOLLOW HOPE: CAN COURTS CoURTS BRING ABOUT ABOUT SOCIAL CHANGE? 236 (1991) including that "differences "differences in ques(1991) (discussing difficulties with polling on abortion issue, including tion wording and question order turn difference in responses"). responses"). tum out to make a difference 148. See GEORGE GALLUP, JR., THE GALLUP POLL: PUBLIC OPINION OPINION 1986, 1986, at 49, 51 (1987) 1974, 47% favored and 44% Roe in 1981,45% 1981, 45% favored and (1987) (showing that, in 1974,47% 44% opposed Roe; 46% Roe, in 1983, 50% 1986, 45% favored and 46% opposed Roe,' 50% favored and 43% 43% opposed Roe; Roe; and in 1986,45% 45% 45% opposed Roe); DENNIS A. GILBERT, COMPENDIUM CoMPENDIUM OF AMERICAN AMERICAN PUBLIC OPINION 36936970 (1988) (1988) (citing an ABC News/Washington Post 54% approved and ABC News/Washington Post poll poll showing that in 1985, 54% and Louis HARRIs HARRiS AND ASSOCIATES, INC., 38% disapproved of Roe); LoUIS AND AssOCIATES, INC., THE HARRIS HARRIS SURVEY SURVEY YEARYEARBOOK AMERICAN ATTITUDES ATTITUDES 387 BOOK OF PUBLIC OPINION 1973: A COMPENDIUM CoMPENDIUM OF CURRENT CURRENT AMERICAN (1976) HARRIs SURVEY] 1973, 52% favored and 41 41% (1976) [hereinafter [hereinafter HARRIs SURVEY] (showing that in 1973, % opposed opposed Roe).


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countermajoritarian. The The data data on on Brown Brown v.v. Board Board of Education, Education,149 149 countermajoritarian. though somewhat somewhat less less clear, also show show majoritarian support. Two though 150 show polls, taken immediately immediately after after Brown, Brown,ISO that over show that Gallup polls, over fifty percent of the population favored the result. Other polls show support favored polls support percent of 51 slightly lower, lower, but still still above a plurality.1lSI The National Opinion Research Center Center shows support for Brown Brown today today at ninety percent of search ls2 polled.152 those polled. Of course, not all all Supreme Court decisions garner majoritarian 154 153 do.1S4 executive decisions decisions dO. or executive more than than legislative legislative or support, support,IS3 any more Two areas areas in in which which controversial controversial judicial decisions have not had Two majoritarian support, school prayer and capital punishment, actually majoritarian support, confirm rather than undermine the conclusion that judicial review confirm rather than does not overrule majority preferences. The Court's decisions banning does not prayer in public schools always have been contrary to relatively subprayer lsS5 What is interesting is the extent to which stantial majoritarian will. will. 15 stantial school prayer prayer continues continues despite judicial approbation. As I and others school have observed, when aa majority majority strongly disagrees with a Supreme have observed, when result.15 6 With regard to the death penCourt decision, defiance is the result.1S6 alty, on on the the other other hand, the Court seems to have followed the pubalty, 57 158 lic.' The Court's decision decision in 1S7 in Furman Georgia,lS8 essentially The Court's Furman v. Georgia, lic. U.S. 483 (1954). (1954). 149. 347 u.s. 150. See See 22 GEORGE GEORGE H. H. GALLUP, GALLUP, THE THE GALLUP GALLUP POLL: PUBLIC OPINION 1935-1971, 150. 1935-1971, at 1250, 1250, 1332-33 (1972) (1972) (showing approval of the Brown decision of 54% 54% in June 1954 1332-33 (showing public public approval 1954 and 56% 56% in in April 1955). 151. See See GILBERT, supra note 148, at (stating that in 1956, 49% American public 151. GILBERT, supra note 148, at 266 266 (stating 49% of American public favored in schools); schools); cf. cf Spann, Spann, supra supra note 20, at 2016 ("Brown and favored racial racial integration integration in and the the cases implementing it can be be understood as the implementing it can understood as the product product of of aa majoritarian majoritarian coalition coalition that that advanced advanced the immediate immediate interests interests of of racial racial minorities."). minorities."). 152. See See GILBERT, supra note 148, at 266-67 (citing 152. GILBERT, supra note 148, at 266-67 (citing a CBS/New York Times poll poll for the proposition that 90% of Americans Americans think think "white black students should go go to the proposition that 90% of "white students students and and black students should same same schools"). schools"). 153. One 153. One interesting interesting case case in in which which aa controversial controversial decision decision did did have have majoritarian majoritarian support was was Bowers Bowers v. v. Hardwick Hardwick. Polls Polls suggest suggest aa majority majority favored favored the the Court's Court's result result in in Bowers, Bowers. GALLUP, GALLUP, supra that in 1986 51% of Bowers), but supra note note 148, 148, at at 214 214 (showing (showing that in July July of of 1986 51 % approved approved of but also indicate indicate that prior to the AIDS epidemic that prior to the AIDS epidemic the the public's public's view view might might have have differed. differed. Id. Id. at 215-16 215-16 (showing (showing that that coincident coincident with with growing growing public public concern concern about about AIDS AIDS the the percentage percentage of Americans Americans favoring legalization dropped dramatically in 1987 1987 and legalization of ofhomosexual homosexual relations relations dropped dramatically from from 45% 45% in in 1985 1985 to to 33% 33% in and that 37% of that in in 1987, 1987,37% of Americans Americans claimed claimed that that their their opinions opinions of of homosexuals homosexuals had had worsened worsened as as a result of the the AIDS AIDS epidemic). epidemic). result of -154. See supra 154. See supra notes notes 140-45 140-45 and and accompanying accompanying text text (discussing (discussing flag-burning flag-burning cases). cases). 155. 155. See See GILBERT, GILBERT, supra supra note note 148, 148, at at 312-13 312-13 (citing (citing several several polls polls showing showing substantial substantial majorities ties favoring favoring prayer prayer in in public public schools, schools, ranging ranging from from 60% 60% favoring favoring prayer prayer in in public public schools schools in in general to 83% 83% favoring favoring voluntary voluntary silent silent prayers). prayers). general to 156. 156. See See Barry Barry Friedman, Friedman, When When Rights Rights Encounter Encounter Reality: Enforcing En/orcing Federal Federal Remedies, Remedies. 65 6S S. S. CAL. CAL. L. L. REV. REv. 735, 735, 768-71 768-71 (1992). (1992). 157. 157. See See generally generally Winter, Winter, Judicial Judicial Review, Review. supra supra note note 40, 40, at at 686-89 686-89 (discussing (discussing Court's Court's majoritarian to death death penalty). penalty). majoritarian approach approach to 158. 158. 408 408 U.S. U.S. 238 238 (1972). (1972).



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striking all state death penalty statutes, appears appears not to have garnered garnered 159 Nonetheless, Furman majority support. 1S9 Nonetheless, Furman was decided at a time when public support support for the death penalty was near its lowest point ever.1 60 Furman Furman thus kicked off an experiment experiment - a test of American American ever.l60 sentiment. As polls have increasingly increasingly showed showed stronger stronger support for the death penalty, the Court has eliminated procedural procedural hurdles to its imposition. The above information is neither perfect perfect nor comprehensive. comprehensive. Yet, all judifor all that, it is telling. Although these results do not reflect all cial decisions, they do track the decisions that give rise to the greatest greatest countermajoritarian courts. As such, they suggest that, complaints of countermajoritarian countermajoritarian difficulty, even concontrary to laments about the countermajoritarian troversial troversial judicial decisions often are majoritarian. 2. Process Process Majoritarianism Majoritarianism majoritarian So far, we have seen that judicial review of ostensibly ostensibly majoritarian decisions is extremely deferential, that judicial review itself often relies judicial heavily determine the content heavily upon majoritarian majoritarian sources to determine content of rights, and that polls suggest that even some of the most controversial judicial majoritarian will. All All this, taken together, decisions comport with majoritarian paints a picture of a judiciary far more majoritarian judiciary majoritarian than generally picture described. Nonetheless, Nonetheless, one further measure of majoritarianism has yet to be assessed. That is the process majoritarianism question question of accountability. What distinguishes judges judges from other public actors in the minds of of 16 1 many is judges' lack of accountability accountability to majoritarian concerns. 161 In our idealized idealized view of American constitutionalism, constitutionalism, those who govern govern us represent represent us. Although representation representation is not a perfect perfect mirror mirror of executive and legislative majority will, the sense remains that executive legislative officials are accountable accountable to the electorate electorate in ways that judges !ll"e are not. But this is true only in the most formalistic and unanalytic of senses: on close examination the judiciary is much much more accountable than it appears. 159. Furman was 159. I say appears appears because because the polls asked asked about favoring the death penalty; penalty; Furman supra note 148, at 20, 74, 371; 2 it!. id. at 754 about the process of imposing it. See 1 GALLUP, GALLUP, supra 754 50% in (showing majorities majorities in favor of the death penalty for persons convicted of murder of 50% HARRIs SURVEY, SuRVEY, March of 1972, 57% in November of 1972, 64% in 1974, and 65% 65% in 1976); HARRIs supra believed in the death supra note 148, at 375 (showing that in April of 1973, 59% 59% stated that they believed death penalty). 160. Although the lowest percentage in favor of the death recorded by a Gallup poll lowest percentage death penalty penalty recorded 75% in favor in November November 1985, 1985, the 50% in favor was 42% in 1966, compared to showings of 75% just prior to Furman GALLUP, supra supra note 148, at 57; GALLUP, Furman was was rather rather low. See GALLUP, GALLUP, supra supra note 147, at 20. 161. See supra supra notes 40-43 and accompanying 161. accompanying text.


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162 Elections appear to be the key to the theory theory of accountability. accountability.162 elected, they are not accountable Because judges are not elected, accountable to the electorate. But both halves are halves of this equation are debatable: debatable: some judges are elected, and elections elections do not appear to guarantee accountability. accountability. 63 While methods of Many state judges, for example, are elected.1163 election and retention may vary, a great number of judges charged charged with making constitutional decisions are nonetheless constitutional nonetheless accountable accountable to the electorate to some extent. Moreover, in the face of growing growing legislative incumbency rates,l64 rates, 64 it is at least worth questioning whether the requirement requirement of standing for election has much at all to do with accountability. The electorate electorate increasingly feels it cannot control control its elected elected officials in any meaningful meaningful sense. The numbers support the assertion: in many cases, despite the need to stand for election, legislators are serving every bit as long as unelected judges, and periodic periodic significantly. 165 affairs significantly.16s state of this state of affairs elections do not appear appear to threaten this Furthermore, the concern concern about legislative accountability accountability is not based solely on incumbency. Rather, the entire notion of majoritarian representation representation is in a sense questionable. Legislative representatives make countless countless decisions every day, most of which are obscured from 66 There public view or buried legislative business.' buried in an avalanche of oflegislative business,166 are very few "big electorate even could "big ticket" ticket" issues on which which the electorate chart the performance performance of a representative representative and make an intelligent deciTUSHNET, RED, WHITE, AND BLUE: A 162. See MARx MARK TuSHNET, WHITE, AND A CRITICAL CRmCAL ANALYSIS ANALYSIS OF CONSTTUCoNSTITUTiONAL TIONAL LAW LAW 121 (1988) (1988) ("Because legislators must seek reelection, they are more likely than judges to be be sensitive sensitive to the ways in which laws - or the absence of laws when judges find some statutes unconstitutional - actually affect people."). statutes unconstitutional affect the lives of real people."). 163. William & Larry Tlventy Years ofJudicial 1(. Hall & Larry T. Aspin, What Twenty Judicial Retention Elections 163. William K. Have Told Us, Us, 70 JUDICATURE 340, 343 (1987) (1987) (noting that by 1976, 1976, 12 states used merit selection with retention elections); Norman Krivosha, Celebration of the 50th Anniversary of Merit Merit elections); Norman Krivosha, In Celebration Selection, 74 JUDICATURE 128, (1990) (sidebar) (noting that 33 states employ merit selection selection Selection, 128, 132 132 (1990) instead of popular election of judges). legislative terms illustrate 164. The recent recent drives to limit legislative illustrate this problem. See Charles Krauthammer,... and the Perils Perils of Populism, Populism, WASH. Posr, POST, Nov. 8, Krauthammer, ••• and 8, 1991, 1991, at A25 A25 (citing polls showing 75% support support for term limits among electorate; suggesting suggesting that support support may collapse collapse Term Limits, TRIB., Nov. 10, 1991, 1991, at 3 (noting that under scrutiny); A Wake-Up Call Call on Term Limits, Cm. CHI. TRIB., term limitation measures measures graced graced ballot in 10 to 15 states; Washington State State defeat of term limits was first after three victories). victories). Judiciaryin Implementing Implementing an an Agency ofGovern165. Richard Pierce, The Role of ofthe Judiciary Agency Theory ofGo~'ern ment, 64 N.Y.U. L. REv. 1239, 1249 (1989) (1989) (noting that incumbents ment, incumbents in the House of RepresentaRepresentntives enjoy a near 99% "House members today enjoy de facto 99% reelection rate and concluding that "House approaching that of judges - they are potentially removable constituents tenure approaching removable only if their constituents believe they they are are involved in widespread unethical conduct"); see also also Peter Bragdon, St. believe involved in widespread illegal or unethical Bragdon, St. Germain Out, Out, But Incumbents Strong, 46 CONG. (1988). Germain Incumbents Still Strong, CoNG. Q. 3266 3266 (1988). legislator is following the will of her electors, low electoral electoral partici166. Moreover, even if a legislator pation may mean mean that she still may not be following the wishes of a majority of her constituents. constituents. See TuSHNET, TUsHNET, supra supra note 162, 162, at 103 103 ("Participation in politics is so low as to raise questions questions representativeness of the process as a whole."). about the representativeness




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167 sion at the ballot box regarding retention. 167 Conversely, what "big "big ticket" process. - single-issue ticket" issues there are may in fact distort the proces~ and strongly ideological ideological voters on issues such as abortion abortion may over168 shadow representation. 168 shadow the general question of representation. With such a low possibility for the electorate electorate sensibly to monitor monitor performance have overlegislative performance, performance, factors other other than performance taken the election process, leading to the current current level of incumbency. When performance becomes obscured, name recognition recognition and money 169 take over. over.169 Incumbents attract attract funds, which attract name recogni170 tion, and incumbency incumbency begets incumbency. incumbency.170 The important point is incumbency rates are a symptom of the loss of electothat lengthening incumbency ral control, not a disease in and of themselves. Compared with the electoral control over legislatures, judges judges may not seem so relatively relatively unaccountable. This may seem because one seem somewhat of a cheat, however. Just because representative government has gone bad does not mean that aspect of representative another problem problem is acceptable. But even assuming assuming that judicial judicial accountability is a "problem" "problem" (after all, the system has varied less here countability from original intent than in the case of the legislature), it still is unclear that the problem problem is anything but a myth. examine the hardest of In this regard, it is profitable profitable to examine hardest case, that of the federal judiciary. Federal judges, unlike some of their state counterparts, are not chosen by election,171 election,' 7' and they generally generally serve for for many years. Surely on the federal bench, one might argue, there is an accountability problem. accountability Before proceeding proceeding to explain why the federal judiciary judiciary is more majoritarian from a process perspective perspective than we often believe, it is 167. More suggested that the desire for reelection More than one scholar has suggested reelection may lead legislators legislators to spend spend their time on pork barrel barrel legislation for their districts and on casework casework for their constituents, rather than on addressing hard policy issues. See MORRIS MORRIS P. P. FlORINA, FiORINA, CoNGRESS: CONGRESS: KEyKEYSTONE OF TIlE TIE WASHINGTON WASHINGTON ESTABLISHMENT stONE EsrABUSHMENT 39-43 (2d ed. 1989); DAVID DAVID IL R. MAYHEW, MAYHEW, CONGRESS: THE ELECTORAL CoNNECTlON CONNECMTON 46-61, 81-158 CoNGRESS: 81-158 (1974). (1974). 168. "[I]n contrast to the direct or participatory 168. "[I]n participatory democracy democracy of the town town meeting, meeting, it is inherent in the system of representative government that the electorate electorate must buy its political political represenrepresenform." Choper, supra supra note 48, at 818. tation in bulk form." & FRICKEY, FRICKEY, supra supranote 169. See FARBER & note 28, at 23 ("Because ("Because voters don't know much about about a legislator's conduct, elections elections may turn on financial backing, publicity, pUblicity, and endorsements."); Lewis B. Kaden, Politics, Politics,Money, Money, and State Sovereignty: Sovereignty: The Judicial JudicialRole, Role, 79 COLUM. REV. CoLUM. L. REv. 847, 862-67 (1979). (1979). supra note 165. 170. See supra 171. Under the federal Constitution, the President appoints, with the advice and consent of of the Senate, all Supreme Court Justices. U.S. CoNst. CONsT. art. II, § 2, c1. cl. 2. Congress vested similar similar appointment powers in the President President for federal circuit circuit and district court judges. See U.S. CONST. (empowering Congress to establish lower courts); 28 U.S.C. § 44 (1988) (1988) CoNS!. art. III, § I 1 (empowering U.S.C. § 133 (1988) (1988) (grant(granting the President the power to appoint circuit court judges); 28 U.S.C. ing the President President the power to appoint district court judges).


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worth worth acknowledging acknowledging that most arguments arguments offered offered to prove this point point do do not carry carry great great weight. weight. There There is, for example, example, the the option option of iml72 But the threat peachment. peachment. 172 threat of impeachment impeachment is so so small small as to to render render for accountability. Likewise the it almost entirely entirely meaningless meaningless accountability. Likewise the possi3 interesting legislative control control of federal federal jurisdiction; 17 173 interesting as this bility of legislative bility puzzle puzzle is, with a few notable notable exceptions exceptions this power power -- if if indeed indeed it is a legislative legislative power power - has lain lain dormant for most of the nation's his174 tory. tory.174 Finally, attempts at Court-packing Court-packing are rare.175 rare.17S Somewhat Somewhat more promising promising is the nature nature of judicial judicial appointment. appointment. appointed by PresiAlthough Although federal federal judges are are not elected, elected, they are appointed dents who stand for popular popular election. election. Judicial Judicial appointments appointments often 1 76 176 This mirror elected a President. This undoubtedly undoubtedly mirror the the popular popular will that elected confluence with popular interests. Moreover, the does assure assure some some confluence confirmation confirmation process process for federal federal judges judges seems designed designed to ensure ensure that that judges are insofar as the are in the mainstream mainstream of popular views, at least insofar legislature "teach" legislature is representative representative of the mainstream, and also to "teach" 177 judges what what those views are. 177 Despite evidence evidence that judges judges often mirror the views views of the Presidents that appoint them and that those views views likely are consistent consistent with respond that the aura aura quickly wears off: popular will, one might respond judges judges remain on the bench bench with no threat of removal to ensure ensure ac-

Offices during 172. The The federal Constitution provides provides that federal judges judges "shall "shall hold their Offices 172. good Behaviour." CoN~. art. III, § 1. Behaviour." U.S. U.S. CONST. judicial Power of 173. 173. Article III III of the federal Constitution Constitution provides that "[t]he "[t]hejudicial of the United United States, shall be vested in one supreme Court, and in such inferior Courts Courts as the Congress may CONST. art. III, § 1, 1, and that the Supreme from time to time ordain ordain and establish," establish," U.S. U.S. CoN~. Supreme Court under "shall "shall have appellate appellate jurisdiction, jurisdiction, both as to Law and Fact, with such Exceptions, and under make." Id such Regulations Regulations as the Congress Congress shall make." Id. §§ 2. Scholars Scholars such as Michael Perry Perry argue legislative power of Congress... that "the legislative Congress ••. to define, and therefore therefore to limit, the appellate appellate jurisdicjurisdic. tion of the Supreme Supreme Court and the original and appellate appellate jurisdiction jurisdiction of the lower federal courts" courts" protects majority rule. PERRY, proteCts PERRY, supra note 5, 5, at 128. On the debate over Congress' Congress' power to l. Separating Separating Neo-FederalistView ofArticle IlL' curtail federal jurisdiction, jurisdiction, see Akhil R. Amar, A Neo-Federalist (1985); Barry Friedman, Jurisdiction,65 B.U. L. REv. 205 (1985); Two Tiers ofFederal Federal Jurisdiction, Friedman, A Different Different the Tho REV. 1 (1990). (1990). Supreme Court, Court, Congress Congress and Federal FederalJurisdiction, Dialogue: Dialogue: The Supreme Jurisdiction, 85 Nw. Nw. U. L. REv. of supra note 173, 173, at 9 ("Congress seldom has attempted 174. See Friedman, Friedman, supra attempted a bald removal of ). federal jurisdiction jurisdiction .... . • • ."). 180-81 (discussing Court'packing Court-packing plan). 175. See STONE ET AL., supra supra note 66, at 180-81 supra note 3, at 82 ("Presidential 176. See Chemerinsky, supra ("Presidential appointments assure that the DonCourt's ideology, over time, will reflect the general general sentiments of the majority in society."); Don· Appea&" Formal Rules Opinionsin the U.S. Courts Courts of Appeals: ald R. Songer, Criteria Criteriafor for Publication Publication of Opinions Formal Rules of 311-12 (1990) (1990) (significant evidence in study of EmpiricalReality, Versus Empirical Reality, 73 JUDICATURE 307, 311·12 unpublished unpublished decisions that appointees to U.S. Court of Appeals Appeals by Democratic presidents presidents issue more liberal decisions than their Republican counterparts). counterparts). "[t]he Senate's rejection of almost 177. See Chemerinsky, supra supra note 3, at 82 (finding (finding that "[t]he almost another American history has served as another twenty percent of nominees for the Supreme Court in American Senate, the Constitution, Constitution,and & Cass R. Sunstein, majoritarian influence"); David A. Strauss & Sunstein, The Senate, (1992) (suggesting that, although commit· committhe Confirmation ConfirmationProcess, Process. 101 YALE L.J. 1491, 1491, 1516 (1992) the Jusments made during confirmation confirmation hearings hearings are not enforceable, they nonetheless will lead a Jus· "think twice" tice to "think twice" before violating them).

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countability. This complaint, however, makes the fundamental fundamental mistake of assessing assessing institutional institutional accountability with reference reference to the selection and retention of individual individual institutional actors, rather lookselection accountability we ing at the institution institution as a whole whole. When we discuss accountability tend to compare compare like this: senators senators are elected every six years; judges are appointed for life; senators thus are accountable accountable and judges are 178 But in not. 178 terms of results, the accountability of the Senate - and individual members. the judiciary - is what is important, not that of individual Just as the Senate, rather than individual senators, makes makes decisions that affect us, so too with the judiciary. True, judges decide individual individual cases (just (just as senators make individually important decisions). But But serious public moment, decisions are made by the judicifor matters of serious ary as a whole. Matters Matters of policy treated treated by the judiciary judiciary bubble bubble up through a judicial system until agreement agreement is reached. Really important questions are decided not by one court, but by several - often many. As a question advances through tiers of review, the judicial judicial bodies become less monolithic and more collegial, with individual bodies become district judges giving way to appellate panels. Decisions depend not on "representatives." of "representatives." one judge, but on a collection of Viewed Viewed through the institutional institutional prism, the judiciary judiciary is far more accountable than we often recognize. In my lifetime alone the judiciaccountable ary has made two dramatic dramatic political shifts, to the political left and the 79 This right.'179 level of responsiveness responsiveness is rare in any legislative legislative political right. body. Perhaps more important, viewing the judiciary from an instituperspective suggests why and how it is accountable in ways that tional perspective legislatures currently are not. Viewed from an institutional perspecappointment is very important, and represidential appointment tive, the power of presidential tention accountability accountability is far less so. The judiciary judiciary is inherently fluid in composition. The judiciary judiciary is a river, constantly moving. Judges are always leaving leaving and new judges judges are always taking their places. Occaup.18 0 sionally the judiciary jUdiciary grows, and more room for change opens Up.180 fill them with judges As vacancies vacancies occur, presidents :fill judges whose views are at least somewhat somewhat similar to their own and, more important, to the views eg., Chemerinsky, Chemerisky, supra supra note 178. See, See, e.g., note 73, at 1212 (acknowledging that, if democracy democracy is defined electoraIIy accountable accountable officials may may make decisions, then the defined as a requirement requirement that only electorally Supreme Supreme Court is not a democratic institution because the Justices Justices have lifetime lifetime appointments appointments and are not directly accountable accountable to the electorate); alsosupra electorate); see also supra notes 40-43 and accompanying accompanying text. 179. Compare Compare the expansion expansion of individual liberties under the Warren Court with their constriction under under Chief Chief Justices Burger Burger and Rehnquist's tenures. 180. An example of this occurred with the Federal Federal Judgeship Judgeship Act of 1990, 1990, which created 85 new federal appellate judgeships, filled by the Bush administration's federal district and appellate judgeships, all to be fiIIed administration's nominees. Pub. L. No. 101-650, §§ 201-206, 201-206, 104 Stat. 5098-5104 (codified at 28 U.S.C. Stat. 5089, 5089, 5098-5104 U.S.C. §§ 44, 1991)). 133, 331 (Supp. 1991».


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81 of the people who elected them.1lSI Thus, as the views of the electorate change, the change is reflected in the changing composition composition of the judiciary. The mirroring process is, concededly, imperfect, but it is subject to continual continual modification. Besides, imperfection imperfection must be compared with the alternatives. Seen as an institution, the judiciary jUdiciary appears accountable. Natural 18 2 Moreattrition plays an important role in judicial accountability. accountability.ls2 over, results appear appear to favor the notion of judicial accountability. The character of the judiciary judiciary has changed, noticeably, noticeably, to mirror shifts in societal attitude.18ls33 Again, the argument is not that the judiciary is societal perfectly perfectly majoritarian majoritarian or perfectly perfectly accountable. No branch branch of government is. The judiciary as an institution does, however, appear responjUdiciary appear majoritarian will, not only with regard to substantive results, sive to majoritarian but from a process perspective as well. Indeed, we shall see that the judicial appointment process provides an important internal constraint judicial appointment internal constraint on the judges in the dialogic system that we actually enjoy.

Majoritarianism C. C. The Difficulty with Majoritarianism

Some undoubtedly will resist the characterization characterization of courts as majoritarian and the propriety majoritarian propriety of understanding understanding the rights courts define and protect protect as based based on and subject to majority will, arguing that "recent" "majoritarian" "majoritarian" streak is aberrational the Supreme Supreme Court's Court's "recent" 8 4 The notion that a constitutional and inappropriate. 1lS4 constitutional right is subject understandably seems antithetical to majoritarian majoritarian definition definition understandably antithetical to our ideal. Although this article primarily primarily is directed directed to those who dwell countermajoritarian nature of the judiciary on the countermajoritarian judiciary and view it as an an argument for narrowing the scope of judicial review, some brief rescope judicial sponse to this other group is appropriate. appropriate. The idea of a branch of government government charged charged with defining rights in aloof fashion, remote from the will and whim of popular politics, is an engaging one. It is a myth that could capture capture a nation's heart. On the other hand, one hardly could expect that mythic branch of govern181. See supra supra note 176. . expected 182. As Bill Clinton's term began there were 100 judicial vacancies; 150 more are expected during his term. See Nan Clinton'sFirst FirstPicksfor Vacancies, S.F. CHRON., PicksforJudicial Nan Aron, Clinton's Judicial Vacancies, CHRON., Jan. 2, Senate and House 1993, at A18. For what the comparison is worth, during the last election 122 Senate seats turned over -- a very large number. Clifford Krauss, Political Political Mew" Mess; Vying for for Committees, Committees, FreshmenMimic Insiders, Insiders, N.Y. TIMES, Nov. 30, 1992, Freshmen 1992, at All; All; see also Einer Einer R. Elhauge, Does Interest More Intrusive L.J. 31, 31, 83 n.195 (1991) Interest Group Group Theory Justify More Intrusive Judicial Judicial Review?, 101 YALE YALE L.l. n.195 (1991) (discussing debate about relative accountability accountability of judges and legislators by measuring measuring length of of terms and likelihood of promotion; promotion; concluding differences in political accountability accountability are "less "less than one might might think"). 183. See supra supra note note 179 179 and accompanying accompanying text. 184. See Chemerinsky, supra supra note 3; Sherry, supra supra note 52; Stone, supra supra note 63.



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ment to exist. It is, for any number of reasons, simply inevitable inevitable that our rights should should have a majoritarian cast. After all, judges are products of our society, as likely as not to impose impose our society's values on 18 5 This the rather broad broad text of the Constitution. ISS may give rise to serious objection objection that ours is not one monolithic society with one monolithic set of values. But the point should not obscure the broad truth that the values that judges use to define constitutional constitutional rights will re186 At some level flect the judges' own values. IS6 those values are our our values, or at least the values of some of us. Judges are products of the society in which they live and will turn to its values when they define 8 7 Indeed, where constitutional rights. Is7 Indeed, where else could they turn? When courts are discussed in countermajoritarian countermajoritarian terms I often get get a funny picture of judges as aliens come from Mars to impose Martian Martian values upon an unwilling electorate. One cannot cannot help but wonder who the academy believes "countermajoritarian" outsiders are, who academy these "countermajoritarian" can define a set of values separate from the societal consensus. More(countermajoritarian) values are being defined, it Martian (countermajoritarian) over, if Martian seems it would take one awfully awfully big Martian army to impose impose them; the very fact that no such force typically is needed to enforce constitujudicial detional decisions suggests at least some level of approval of judicial constitutional rights find some level of acceptance cisions. Unless constitutional acceptance in 88 the body politic, those rights will not be enforced.' enforced. ISS By the same token, I concede concede there is a real problem By problem with the nolies not, however, in problem lies tion that courts are majoritarian. The problem the court-legislature court-legislature dichotomy of the countermajoritarian countermajoritarian difficulty difficulty other branches of government government in - the idea that courts differ from other wil while courts trample upon it. that other branches branches follow majority will problem lies with the broader broader notion that there even is aa Rather, the problem not majority will that legislatures mirror, and that courts trump or do not 185. supra note 20, at 1982 ("[J]ustices ("[J]ustices are socialized socialized by 185. See Spann, supra by the same same majority that determines their fitness for judicial .... "). This insight is central to much of Steve Steve Windetermines judicial office .•.. ter's excellent writing on courts and the countermajoritarian countermajoritarian difficulty. See, e.g., eg., Winter, supra supra ter's note 24, at 1520-22 (discussing process of jurisgenesis jurisgenesis in which which judges, who are "situated" "situated" in Upside/Down, supra ("judicial indepensupra note 40, at 1889 1889 ('~udicial indepensociety, probe society's norms); Winter, Upside/Down, crucial[l]y important institutional design. In a crucial[l]y important sense, however, dence is a matter matter only of formal institutional judges are entirely dependent dependent on the cultural understandings that make meaning possible"). possible"). Winter, however, adds a caveat: "[DJominant "[DJominantconceptions majority conceptions are are not the same thing as majority decisions" I& decisions." Id. at 1925-26. Upside/Down, supra supra note 40, at 1925. 186. Winter, Upside/Down, 1925. Professor Chemerinsky Chemerinsky concedes concedes this. Chemerinsky, supra note 3, at 98-103 ("In almost all controversial controversial cases, cases, the decisions decisions result Chemerinsky, supra from the Justices' Justices' value preferences."). preferences."). supra note 40, at 1925 ("[TIhe 187. Winter, Upside/Down, Upside/Down, supra ("[T]he mutual entailment entailment of the epistemic and the political political means that judges cannot cannot even think without implicating the dominant dominant . •.•."). normative assumptions assumptions that shape [our] society ... Friedman, supra supra note 156. 188. Friedman,


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trump. As the next Part explains, our society is not mono- or even even bilithic: "majority" whose will bilithic: thus, it becomes difficult difficult to identify a "majority" countermajoritarian difficulty simply is not courts are trumping. The countermajoritarian rich enough in content to describe describe the complex society we are. The next Part takes up this real problem, which cuts to the very premises countermajoritarian difficulty. underlying the countermajoritarian FALLACIES UNDERLYING UNDERLYING THE COUNTERMAJORITARIAN COUNTERMAJORITARIAN II. THE FALLACIES DIFFICULTY countermajoritarian difficulty inaccuIn this Part I argue that the countermajoritarian rately describes our constitutional rately constitutional system. As indicated earlier, most most current current normative theories of judicial review rest upon, accept, or seek to resolve the countermajoritarian countermajoritarian difficulty. The problem problem is that no reason judicial review with the assumpreason exists to begin a discussion of judicial tions of the countermajoritarian countermajoritarian difficulty; these assumptions are at best highly highly overstated, and at worst simply inaccurate. two sections approach the inaccuracy inaccuracy of the This Part's two' countermajoritarian countermajoritarian difficulty from different different directions. The first section questions why anyone anyone would begin begin from the notion that our constitutional stitutional system was intended to be majoritarian. To the contrary, the Framers Framers were deeply troubled by such a system and designed our Constitution to avoid majoritarianism. This section explains explains how our Constitution has become more majoritarian, but it offers two caveats. majoritarian, First, as we shall see, the majoritarianism of our modem Constitution Constitution is not the same as the concept "majoritarianism" that underlies the concept of "majoritarianism" countermajoritarian difficulty. Our political political process has become become more countermajoritarian inclusive, inclusive, and even a bit more direct, but it has not in any fashion fashion adopted the notion of "majority "majority rule." rule." Second, as popular democracy has been on the rise, so too has judicial review. As we shall see, these two elements of modem democracy checking democracy have have grown together, checking one another in a manner consistent consistent with the Framers' original design. The second section section challenges challenges directly directly the twin assumptions of the countermajoritarian difficulty. The countermajoritarian countermajoritarian difficulty countermajoritarian difficulty assumes, first, that there is a majority whose will courts are trumping and, second, that judicial judicial decisions are sufficiently sufficiently final to act as "trumps." I intend to show that neither of these assumptions is cor"trumps." countermajoritarian difficulty, I also seek to rect. While critiquing critiquing the countermajoritarian constitutionalism identify and describe actual aspects of our everyday constitutionalism that help explain the role of judicial review. In preview they are these: first, that popular democracy democracy and judicial judicial review have grown up as checks on one another; second, checks that, rather than a majoritarian majoritarian govconstituencies ernment, we have a government government of varying and shifting constituencies


February 1993]

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that clamor to be heard; third, that our Constitution, rather than being determinate, interpretations; and determinate, is spacious and capable capable of varying interpretations; finally, that judicial encourage a dynamic judicial decisions are not final, but encourage interpretation government of of interpretation of the Constitution. All this leads to our government dialogic constitutionalism, which I describe in Part III. dialogic A. The Framers' Constitution and Our Our Own Framers' Constitution

This section contrasts our everyday everyday Constitution Constitution with that of the Framers. First it illustrates that the Framers Framers did not necessarily necessarily intend either of the two aspects of our modem government government that feed the either countermajoritarian countermajoritarian difficulty - majoritarianism majoritarianism and strong judicial judicial 89 review - to operate as they do.' dO. 189 Second, and because of, of, not despite despite the dual growth of majoritarianism majoritarianism and judicial review, there is remarkable adherence adherence to the Framers' Framers' overriding overriding theory of how the Constitution Constitution would operate. Writ large, the Framers' Framers' intent was to create create a Constitution that separated and checked power. The Constitution would protect protect liberty by requiring requiring agreement agreement among among branches 190 Although the 190 of government before government could regulate. government before government regulate. Framers perhaps did not intend majoritarianism majoritarianism and judicial judicial review to to operate grown operate precisely precisely as they do, those institutions institutions nonetheless nonetheless have grown up one alongside the other, balancing power against against power. Thus, the considerably, its beauty of the system is that, although it has evolved considerably, evolution has maintained the fundamental idea of checks checks and balances embodied embodied in the Framers' Framers' plan. 1. The Framers' Constitution 1. Framers' Constitution The Framers would be surprised, one might speculate, at our current obsession designed obsession with majoritarianism. Their constitution was designed to prevent the control of government by faction, particularly by a magovernment particularly prevent 19 191 jority faction. ' Thus, time and again during the period of drafting and ratification of the Constitution, the Framers condemned condemned the evil Framers' intent is a dicey business. See, See, e.g., ag., BOBBITr, BOBBITr, supra 189. Speaking of the Framers' supra note 5, at at 9-24; Paul Brest, The Misconceived Misconceived Quest/or Questfor the Original OriginalUnderstanding, Understanding,60 B.U. B.U. L. REv. 204, 209-17 (1980); Glenn H. Reynolds, Sex, Lies and Jurisprudence: Jurisprudence"Robert Bork andthe 209-17 (1980); Bark, Griswold Griswold and Philosophya/Original of OriginalUnderstanding, Understanding,24 GA. L. REv. 1045, 1045, 1080 (1990). (1990). It It is particularly Philosophy particularly dicey founders disagreed among in the context of this discussion because, as Robert Burt observes, observes, "the "the fonnders themselves themselves about how to design institutions so as to achieve or approach unanimity, and they did not resolve disagreement in their constitutional scheme." scheme." resolve but rather implicitly implicitly embedded this disagreement ROBERT A. BURT, CONSTrrruION IN CoNFLICf CONFLiCT 46-47 (1992). (1992). BURT, THE CoNSTITUTION 190. See generally generally Rebecca L. Brown, SeparatedPowers Powers and Ordered Brown, Separated Ordered Liberty, Liberty, 139 U. PA. L. REV. 1531-40 (1991) "ordered liberty" liberty" through REv. 1513, 1531-40 (1991) (arguing that Framers Framers intended to secure "ordered structural arrangements); Cass R. Sunstein, Interest InterestGroups STAN. L. structural arrangements); Groups in American Public Public Law, Law, 38 STAN. REv. 29, 38-45 38-45 (1985). (1985). 191. Chemerinsky, supranote 3, 3, at 65 ("The framers' framers' distrust distrust of majoritarian majoritarian politics is well 191. Chemerinsky, supra documented."). documented.").


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majority. 192 The of faction and expressed expressed fear of the tyranny tyranny of the majority.192 concern about majority opinion was expressed most often, and perhaps most eloquently, by Madison. Madison. Writing to Jefferson Jefferson during the ratification ratification period, and commenting on the need for a bill of rights, Madison stated: Repeated states' bills of Repeated violations of these parchment parchment barriers barriers [the states' of rights] have been committed committed by overbearing overbearing majorities in every State.... State.... Wherever Wherever the real power power in a Government Government lies, there is the danger of of oppression. In our Governments of Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constitGovernment contrary uents, but from acts in which the Government of is the mere instrument instrument of 193 the Constituents. the major number of the Constituents. 193 Although Madison strong-minded on the subMadison was particularly particularly strong-minded 9 4 he ject,' ject,194 was by no means alone. Over and over during the framing was expressed about factions' gaining conof the Constitution concern was 95 trol of the legislature legislature or the tools of of government. govemment. 19S strongest While the fear of faction and majority tyranny was strongest among anti-Federalists were of a like mind. among the Federalists, many anti-Federalists democracy, 96 supported pure anti-Federalists supported True, some among the anti-Federalists pure democracy,196 192. 192. Many Many of the Framers were prepared to conclude conclude that the great danger danger to republicanism repUblicanism was not magisterial magisterial tyranny or aristocratic dominance dominance but majority majority faction, which which is the majority "united and actuated "united actuated by some common impulse or passion, passion, or of interest, adverse to the rights of of community." THE FEDERALother citizens, or to the permanent permanent and aggregate interests of the community." FEDERALisT No. 10, at 57 (James Madison) 1961). This "factious majoritarianism" IST Madison) (Jacob E. Cooke Cooke ed., 1961). "factious majoritarianism" was the focus of the Federalist GORDON S. Federalist perception perception of politics. GORDON S. WOOD, WOOD, THE CREATION CREATION OF THE AMERICAN AMERICAN REpuBuc, REPUBLIC, 1776-1787, 1776-1787, at 502 (1972). (1972). In the minds of the Framers, majority faction posed its greatest greatest threat threat in the legislatures. commented: "In Benjamin Rush commented: opposition to monarchy, "In our opposition monarchy, we forgot that the temple of tyrrestraints; but we left the other open, anny has two doors. We bolted one of them by proper proper restraints; open, by licentiousness." Benjamin Benjamin guard against the effects of our own ignorance ignorance and licentiousness." neglecting to guard Rush, An Address quoted in FARBER & & SHERRY, supra note 78, Address (1787), (1787), quoted SHERRY, supra 78, at 16. James McHenry maxim agreed: "Our "Our chief danger arises from the democratic parts of our constitutions. constitutions. It is a maxim which I hold uncontrovertible, that the powers of government government exercised by the people swallow constitutions have provided sufficient up the other branches. None of the constitutions sufficient checks checks against the democracy." 11 THE REcoRDs RECORDS OF THE TIlE FEDERAL FEDERAL CONVENTION CoNVENTION OF 1787, at 26-27 (Max Farrand democracy." 1911) [hereinafter FARRAND]. "[i]n England, ed., 1911) FARRAND]. Elbridge Elbridge Gerry noted noted that "[i]n England, the people will probably lose their liberty smallness of the proportion proportion having a right of suffrage. Our liberty from the smallness Mass[achusetts], the worst men get into the danger arises from the opposite opposite extreme: hence in Mass[achusetts], Legislature." Id Legislature." Id. at 132. 193. 1788), in 1 THE CONSTITU193. Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), THE SUPREME CoURT COURT 122 (Louis H. Pollak ed., 1966). 1966). TION AND AND TIlE 194. During the Federal Convention, Madison noted that, "where "where a majority are united by a Federal Convention, common sentiment and have an opportunity, the rights of the minor party become become insecure. insecure. In a opportunity." 1I FARRAND, FARRAND, supra supra note Republican Govt. the Majority if united have always an opportunity." also supra supra text accompanying 193. 192, at 136; see also accompanying note 193. 195. See supra supra note 192; see also Sager, supra supra note 28, at 948 ("Publius, whoever whoever happened happened to to be driving, did not suffer from an excess of confidence confidence in the body politic."). 196. According to Gordon Gordon Wood, the populism populism of the anti-Federalists anti-Federalists cannot be impugned. "They "They were true champions of the most extreme kind of democratic democratic and egalitarian politics expressed in the Revolutionary WooD, supra supra note 192, at 516. Philadelphiensis Philadelphiensis wrote, Revolutionary era." era." WOOD,



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and the chief chief focus of the anti-Federalists anti-Federalists was government at a more 1 97 local level, 197 where majority tyranny, although a concern, was ameliorated by the supposed supposed similarity of views in the smaller body poli198 tic. 198 Even so, many spoke of the danger of majority tic. Even so, many anti-Federalists anti-Federalists spoke 19 9 rule. 199 Democracy was certainly Framers' minds and rightfully so Democracy certainly on the Framers' understood given their recent experience experience with despotism. But they understood government and that despotism of the many could be as dangerous dangerous to government to individual individual liberty as despotism despotism of the few, and they designed their ° The Framers' fear 2OO democracy to ensure against against both evils.20 Framers' of majority faction is evident: their constitution constitution is countermajoritarian countermajoritarian in 201' The document document clearly is founded in part on numerous respects.20 on "America under [a government] "America government] purely democratical, would be rendered rendered the happiest happiest and most most powerful .. PhiladelphiensisX, reprinted reprinted in 3 THE CoMCoMpowerful nation in in the universe universe ..•• "" Essays of Philadelphiensis ANTI-FEDERALIsT 99, 131 (Herbert J. 1981). PLETE ANn-FEDERALIST J. Storing ed., 1981). anti-Federalists] were 'localists,' 'localists,' fearful of distant governmental, governmental, even representa"[The anti-Federalists] 197. "[The tional, authority for very significant political and social social reasons that in the final analysis must be democratic." WOOD, supra note 192, at 520. called democratic." WOOD, supra 198. The anti-Federalists anti-Federalists were less likely than the Federalists 198. Federalists to see majority faction as the most dangerous dangerous and likely evil of popular government. government. "They "They were inclined inclined to think, with with Patrick Henry, that harm is more often done by the tyranny tyranny of the rulers than by the licentiousness licentiousness people." 1 THE CoMPLETE COMPLETE ANn-FEDERALIST, ANTI-FEDERALST, supra 196, at 40; see also 5 id. ic. at 211of the people." supra note 196, 211licentiousness in the same way, funda20. Moreover, they believed believed in confronting any threat of licentiousness mentally, as the threat of tyranny: by the alert public-spiritedness homogeneous, public-spiritedness of the small, homogeneous, self-governing community. 1 id. i. at 40. 199. ... the Anti-Federalists acknowledged the possibility 199. "In "In general ... possibility of majority majority faction and the need to guard against it .••. .... because it can lead to unjust deprivations deprivations of individual individual liberty." 1I THE CoMPLETE COMPLETE ANTI-FEDERALiST, liberty." ANn-FEDERALIST, supra supra note 196, at 39-40. This was one of the anti-Federalists wanted reasons some of the anti-Federalists wanted a bill of rights. Agrippa Agrippa wrote that a bill of rights "serves to the minority usurpation and and tyranny of the majority majority.... [u]nbridled to secure secure the minority against against the the usurpation .... [u]nbridled "serves passions same effect whether in a king, nobility, or a mob.... mob.•.. It is therefore as passions produce the same necessary to defend an individual against against the majority in a republic[] republic[] as against the king in a monarchy." Letters Letters of ofAgrippa reprintedin 4 THE COMPLETE ANTI-FEDERmonarchy." Agrippa XVI (Feb. 5, 5, 1788), reprinted THE CoMPLETE ANTI-FEDERALIsT, supra 196, at 111. 111. A Maryland farmer made ALIST, supra note 196, made the point even more emphatically: emphatically: Often Often the natural rights of an individual are opposed to the presumed interests or heated passions government; if these rights are not clearly passions of a large majority majority of democratic government; clearly and expressly of expressly ascertained, ascertained, the individual individual must be lost .... .... In In such government the tyranny of the legislative legislative is most to be dreaded. Essays by a Farmer 1788) reprinted reprintedin 5 id. i. at 15. At the Philadelphia Farmer (Feb. 15, 1788) Philadelphia Convention, both anti-Federalists, admitted "the danger of the George Mason and Elbridge Gerry, later later prominent prominent anti-Federalists, democracy" in the American republics. 1IFARRAND, levelling spirit" spirit" flowing from "the "the excess of democracy" FARRAND, supra 192, at 48-49. supra note 192, 200. See WOOD, supra supra note 192, at 598-600 (stating that the traditional colonial colonial aversion to executive and judiciary "unrepresentative" legislature the executive judiciary and the growing growing suspicions of the "unrepresentative" "drawn from the guided the Framers in creating a government government in which the three branches were "drawn ... animated by the same principles," principles," and directed of same source •.• directed to the same end - that of "limited agency of the sovereign people."). people."). serving as the "limited adherence to the Constitution itself presents a difficult difficult 201. Indeed, as others have observed, observed, adherence countermajoritarian problem. constitutional theorists is countermajoritarian problem. One of the most perplexing perplexing questions questions for constitutional itself. Often the Constitution is referred the legitimacy of the Constitution itself. referred to as legitimate legitimate because it is founded on majority majority ratification. But even if one puts aside problems problems with this theory 1017-23, 1058; John Leubsat the time of ratification, compare compare Ackerman, Ackerman, supra supra note 3, at 1013, 1017-23, dorf, Deconstructing Constitution, 40 STAN. 181, 187 (1987) dorf, Deconstructing the Constitution. STAN. L. REv. 181, (1987) with Akhil R. Amar,


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permitting and expecting the populace to speak through its elected elected representatives. By representatives. By the same token, the Constitution is shot through popular with provisions provisions that in effect might defeat the decisions decisions of a popular majority. To call the Constitution Constitution majoritarian, therefore, simply is inaccurate. Such a characterization characterization certainly certainly would have surprised the Framers. If one can imagine sitting down with some of the Framers and describing describing current notions of majoritarianism, majoritarianism, one must imagyou." gave you." "This is not the we gave ine hearing: "This the Constitution Constitution we

of Majoritarianism ... 2. The Rise 0/ Majoritarianism ... Just because because the Constitution the Framers gave us is not majoritarian does not mean our Constitution cannot be 2 One of the important lessons addressed here 202 majoritarian. 20 is that addressed that 203 Ours certainly constitutions must change and grow to survive. 203 204 In fact, popular democracy democracy has been on the rise since the time has. 204 20 5 The Framers' plan was for a the Framers finished their work. 20S highly representative representative democracy, democracy, with strict limitations on those who 2066 Our democracy has become inclusive and become much more inclusive had a voice. 20 direct, with participatory participatory rights accorded accorded to a greater portion of the direct, PhiladelphiaRevisited: Amending the Constitution Outside Anicle Article 1': V,55 U. CHI. CHi. L. REv. 1043, Philadelphia Constitution Outside 1047-48 supra note 3, 1047-48 (1988), (1988), there there is no reason to assume majority majority assent today. See Ackerman, Ackerman, supra 3, Illegality of the Constitution. Constitution, 4 CoNST. CONST. CoMM. COMM. 57 (1987). (1987). at 1017, 1058; Richard S. Kay, The Illegality constitutional legitimacy, a serious Thus, even at the core level of constitutional serious question exists whether majoritarianism is the governing principle. AcKERMAN, supra supra note 14, at 67 (discussing 202. See ACKERMAN, (discussing modern selection of presidency; presidency; "[w]hatever "[w]hatever else is obscure obscure about this modern modern system, one thing should should be clear: clear: it exists despite the contrary contrary intentions of the Philadelphia Philadelphia Convention"). 203. See infra notes notes 373-75 and accompanying text. & John Ferejohn, Article 1, I, Section Section 7 Game. Game, 80 GEO. 204. See William N. Eskridge, Jr., & Ferejohn, The Anicle ("The world world," given the development of the L.J. 523, 533 (1992) (1992) (''The world of the Framers is not our world," modern administrative administrative state.). BuRT, supra 205. Robert Burt makes just this point. See BURT, supra note 189, 189, at 35-36; see also Chemerinsky, supra of supra note 3, at 67-68 (stating that, as belief in natural law waned, majoritarian majoritarian concept of Chemerinsky argues that during the Progressive democracy began to democracy expanded). expanded). Chemerinsky Progressive Era democracy kaLat 67. become an end in itself. Id. representation - "the "the delegation of the Government Government... 206. Madison called called representation • • . to a small citizens elected elected by the rest" - "the pivot" on which which the unique American system number of citizens moved. THE FEDERALIST No. 10, at 62 (James Madison) (Jacob E. Cooke ed., 1961); WOOD, supra note 192, at 596-97. The franchise, however, was limited to a relatively small number of of supra people. Though the requirements requirements varied somewhat, the states maintained maintained that voters had to be id. at 167-70, and "all "all of the states required some sort sort of tax-paying or or free white male citizens, id property qualification for the suffrage." suffrage." Id. at 168. The point was to ensure that only those free consequence of their trust could vote. Id. at 167-70. 167-70, knowledgeable of the consequence from influence influence and knowledgeable The Framers did not undertake the difficult and controversial controversial task of setting setting uniform standards standards for the suffrage because "the "the qualifications for voting so differed in the various various states that [doing so] ... .•• might have disenfranchised disenfranchised previously previously qualified citizens in some states." states." FARBER FARBER & SHEmRY, supra note 78, at 142. SHERRY, supra 142. The Framers did agree, though, that the rule of representation representation for the legislature would be according according to "the whole number of white and other free citizens citizens and and inhabitants" "three-fifths of all persons... inhabitants" and "three-fifths all other persons ..• except Indians not paying paying taxes." taxes." Id. Id. at at also BURT, "Mhe founders did not 121; see U.S. U.S. CONST. CoNST. art. I, § 2; see also BURT, supra supra note 189, at 50: "[T]he




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populace. populace. In this specific sense our government has become more majoritarian. majoritarian. structural move toward this majoriPerhaps the most significant significant structural tarianism in the Constitution tarianism was the Seventeenth Seventeenth Amendment, pro20 7 Likewise, the viding for direct election of senators.207 franchise explicitly 208 The FifFifexplicitly has been extended to broad segments of society.208 20 9 teenth Amendment Amendment forbids denying denying the franchise based upon race. 209 2 10 to women. franchise to The Nineteenth Amendment extended the franchise women. 210 The Twenty-sixth Amendment Amendment extended extended the franchise to those citizens 211 eighteen older. In addition, the Twenty-fourth Amendeighteen years and older.211 ment abolished poll taxes,212 taxes, 21 2 and the Twenty-third Twenty-third Amendment gives citizens election citizens of the District of Columbia electors electors for (at least) the election 2 13 213 of President of the United In fact, seven of the fourteen United States. amendments War explicitly extend extend the amendments enacted since the Civil War franchise or remove remove obstacles to its exercise. Thus, the majoritarian majoritarian strain increasingly prominent strain has grown increasingly prominent in our Constitution. Not only the Constitution Constitution has become become more majoritarian, howdocument governs. Indeed, it is someever; so has the society that document transformation has caused the other. We times difficult to tell which which transformation become a society enamored of the accouterments accouterments of popular govhave .become ernance. We revel in national polls; every every day we devour media media rethink.21 4 Our presidential presidential candidates ports on what the polls say we think.214 215 We vote with television promise national electronic electronic town meetings. 215 2 16 and telephone on 1-900 1-900 numbers,216 numbers, and even if the votes do not count count expect that the direct commandatory commandatory voice of the sovereign People People would be heard very often in the daily affairs affairs of governance." governance." 207. U.S. CONST. CoNST. amend. XVII, cl. cl. 1; see Stewart A. Baker, Federalism Federalism and the Eleventh Amendment, 48 U. CoLo. 139, 178 (1977) (describing Seventeenth Amendment as a CoLO. L. REv. 139, 178 (1977) (describing the Seventeenth "blow federalism"). "blow to formal federalism"). 208. See ELY, supra supra note 5, 5, at 7. 209. U.S. CONST. background, enactment, CoNST. amend. XV, § 1. For a discussion of the historical historical background, and ratification ratification of the Fifteenth Amendment, see PAGE SMITH, SMrrH, THE CoNSTITUTION: CONSTUmON: A DocuDocuMENTARY (1978). MENTARY AND NARRATIVE NARRATIVE HisTORY HISTORY 452-53 (1978). 210. U.S. U.S. CONST. cl.1. CoNST. amend. XIX, cl. 211. U.S. CoNST. CONsr. amend. XXVI, § 1. For a discussion of the extension of majority rule through Amendments Fifteen, Seventeen, Seventeen, Nineteen, and Twenty-six, see FARBER FARBER & SHERRY, supra note 78, at 339-42. supra 212. U.S. U.S. CONST. 1. CoNST. amend. XXIV, § 1. 213. U.S. U.S. CONsT. 1. CoNST. amend. XXIII, § 1. Polls?,ATLANTA 214. Andrew Mollison, Keeping You Up Up to Date: Date: Too Much Power Powerfor Polls?, ATLANTA J. & & CONST., CoNST., May 26, 1992, at A6 (stating that polls are more important important than ever to voters). 215. CandidacyBreaks with History, History, S.F. CHRON., 215. See Edward Epstein, Epstein, Perot's Perot's Go-It-Alone Candidacy CHRON., to June 8, 8, 1992, 1992, at A5 (detailing Ross Perot's promise of national electronic town meetings to resolve resolve important important policy matters). 216. See, See, e.g., e-g., Susan Gilmore, Polling Polling Firm's Firm's Abortion Flier Hit, Hit, SEATTLE TIMES, Oct. 10, 1991, at B4 (describing poll in which Seattle residents residents call a 1-900 1-900 number and vote on the 1991, abortion abortion issue). Nova Scotia liberals liberals can now vote for a party leader leader by calling a 1-900 number.


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in a formal sense they surely have their impact. One of the primary modern politics, although it may challenge complaints of modem challenge an inevitabilpolls. 2 17 We ity, is that politicians politicians fail to lead and simply simply follow the polls.217 have become become a people people accustomed to speaking our minds, and having our opinions heard. Ironically, one great engine of majoritarianism, both in reality and and of in rhetoric, may have been the Supreme Court. Such was the view of 2218 18 Bickel Alexander Bickel, and there is much truth in what he said. Alexander believed "leveling" majoritarian majoritarian furor by believed that the Court had created a "leveling" "one person, one vote" a number of its decisions, most notably the "one 2 19 Bickel rule of the apportionment cases. 219 "[p]opulist maBickel decried this "[P]opulist joritarianism, balanced Madisonian joritarianism, not some complex complex checked and balanced adjustment among countervailing countervailing groups and factions .... .... "220 "22o He "[m]ajoritarianism is heady stuff warned that "[m]ajoritarianism stuff. ... . .. The tide could could well also."'22 1 engulf the Court itself alsO."221 3. ...... And And of Judicial Judicial Review But Bickel was wrong wrong on that final point. In reality the Court of of today has a stature and importance importance in the public eye perhaps unparalleled during any other time in history. Framers' Constitution. The judicial judicial power was central to the Framers' Scholars debate the extent to which judicial review was intended to extent judicial limit government, and on this as on so many matters the minds of the Framers undoubtedly differed. Nonetheless, the original Constitution had three three great articles, creating not two but three three branches branches of government, one of which was the judiciary. Thus, Jefferson Jefferson argued argued to Madison that the Bill of Rights would be another quiver in the judiciyou ary's bow: "In the arguments in favor of a declaration of rights, you omit one which has great weight with me, the legal check which it '"222 puts into the hands of the judiciary. judiciary."222 Canada'sHome Voting Network: Network- "Dial-a-Leader" "Dial-a-Leader"Gives New Meaning Mark Blanchard, Canada's Meaning to Voting the Party CAMPAIGNS & & ELECrIONS, 1992, available ing Party Line, Line, CAMPAIGNS ELECTIONS, Sept. 1992, available in LEXIS, CMPGN Li&E E File. brary, C & 217. See Dan & Richard Richard Morin, A Tide of Pessimism Pessimism and Political PoliticalPowerlessness Rises, Dan Balz BaIz & Powerlessness Rises. WASH. Posr, PosT, Nov. Al, A16. 1991, at AI, WASH. Nov. 3, 3, 1991, 218. Ely built a theory theory upon this notion. Ely Ely argues that a primary role of the Supreme Supreme Court is ensuring operation of majoritarian politics. See ELY, supra ensuring the free operation ofmajoritarian supra note 5, at 105-34. 219. See BICKEL, BIcKEL, PROGRESS, 13, at 108-09. 108-09. PROGRESS, supra supra note 13, 220. Id. ld. at 110. 221. Id at 111-12. 221. ld. 111-12. 222. Thomas Jefferson's reply to James Madison (Mar. 15, 1789), 1789), in THE CONsrlTUTION CONSTrruTION AND COURT, supra supra note 193, at 121-22. As Robert AND THE TIlE SUPREME SUPREME CoURT, Robert Burt points out, Madison was not a particular particular fan of judicial review. review. See BURT, BURT, supra supra note 189, 189, at 64. Yet, as Burt also makes makes clear, Madison's view of how judicial judicial review should operate operate was similar similar to the dialogue dialogue I describe describe here (and to Burt's own view): "His first principle was that constitutional constitutional interpretation takes


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Nonetheless, the Court in its early days bore little resemblance to Framers call the Supreme Court the Court of today. Not only did the Framers dangerous" branch,223 branch,223 but its prestige seemed to mirror this prestige seemed the "least dangerous" assessment of its power. It was not easy to get people to serve as 224 v. Madison Madison is Supreme Court Justices. 224 The very reason Marbury Marbury v. viewed viewed as such a coup is that the fundamental power of the third 22S5 Today branch branch - the exercise of judicial judicial review - was not a given. 22 few scholars seriously argue that judicial review by the Court of congressional decisions was unintended, and fewer still (if any) argue that 226 Marbury was incorrect. 226 Marbury But at that time, the matter was not free from doubt. Supreme Court and of the judiciary judiciary as a whole whole repThe rise of the Supreme resents a gradual accretion accretion of power. Perhaps one measure of that power is the frequency with which the Court overruled overruled the national legislature and the legislatures of the states, measured measured against popular popu1ar legislature legislatures acceptance after overruling of Congress after acceptance of such overruling. The next overruling Marbury Marbury was some fifty years later, in the infamous Dred Dred Scott deci2277 Supreme sion.22 Supreme Court Court decisions overruling state legislatures reached reached . 228 yet another low their greatest era,228 greatest frequency frequency during the Lochner era, place institutional locus of interpretaplace over time, not in a single instant at a fixed and privileged privileged institutiona1locus tive authority." authority." Id. or Id. at 68. For my description of why judicial review is dynamic, dynamic, not static or final, see infra infra notes 332-86 and accompanying accompanying text. notes 332-86 THE FEDERALIST FEDERALIST No. 78, 78, at 522 (Alexander (Alexander Hamilton) (Jacob E. Cooke ed., 1961). 1961). 223. THE opposed to the other branches of government, Hamilton reasoned that the judiciary, as opposed has no influence over either the sword or the purse; of purse; no direction either either of the strength strength or of the wealth to wealth of the society, society, and can take no active active resolution whatever. It may truly be said said to .... have neither Force nor Will but merely judgment judgment ..•• This simple view view of the matter... matter •.. proves proves incontestably incontestably that the judiciary judiciary is beyond comparison the weakest It equally proves, that... comparison weakest of the three departments of power power..... . •. It that .•. the general liberty liberty of the people can never be endangered from that quarter... quarter ... so long as the judiciary judiciary remains truly distinct from both the legislature and executive. Id. at 523. ld. William W. Van Alstyne, A Critical CriticalGuide Guide to Marbury v. Madison, 1969 DuKE 224. See William DUKE L.J. L.J. 1, 3. 1,3. AcKERmAN,supra supra note 14, at 63 ("[O]n1y ("[O]nly during the middle republic did the Court 225. ACKERMAN, basis. •..• .. "). begin to review the constitutionality constitutionality of national national legislation legislation on a regular regular basis 226. See infra note 237. U.S. (19 (1856) (invalidating federal statute that 227. Dred Scott Scott v. Sandford, Sandford, 60 U.S. (19 How.) 393 (1856) prohibited slavery in the Louisiana Louisiana Territory). U.S. 45 (1905), (1905), to the mid-1930s, the 228. From the decision in Lochner v. New New York, 198 U.S. Court relied on the Due Process Fourteenth Amendment Process Clause of the Fourteenth Amendment to invalidate approximately two hundred decisions centered primarily on labor labor legishundred state economic regulations. The decisions lation, the regulation of prices, and restrictions restrictions on entry into business. See, eg., e.g., New New State Ice Co. v. Liebmann, U.S. 262 (1932) (1932) (invalidating law prohibiting any person to manufacture Liebmann, 285 285 U.S. manufacture & Bro. v. Banton, ice without first obtaining obtaining a certificate of convenience convenience and necessity); necessity); Tyson & 273 U.S. 418 (1927) (1927) (invalidating law regulating price of theater tickets), overruled overruled by by Olsen v. Nebraska, 313 U.S. 236 (1941); (1941); Adkins v. Children's Hosp., 261 U.S. 525 (1923) (1923) (invalidating (invalidating law establishing establishing minimum minimum wages for women), overruled overruled by by West Coast Hotel Co. v. Parrish, 300 U.S. (1937); Coppage (1915), and Adair v. United States, 208 U.S. 161 U.S. 379 (1937); Coppage v. Kansas, 236 U.S. 1 (1915), (1908) (invalidating, respectively, state and federal legislation forbidding employers to require (1908)


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point in the Court's history. 229 Similar Court's history.229 Siinilar overruling of national national deci230 The fact that sions arguably sealed the fate of the New Deal COurt. Court. 230 overruling overruling of national and state legislative decisions once marked the low points for judicial judicial review simply may be coincidence. A decision decision similar to Dred Dred Scott Scott may have hurt the Court whether or not a congressional statute statute was involved. But today's Court seems to be able to overrule overrule both Congress and the state legislatures legislatures with relative impunity.231 impunity.231 Bickel and his contemporaries contemporaries were sure that judicial activism activism 232 For them, judicial legitimacy was a fragile would sink the Court.232 reed that required tending and nurturing. They believed judicial interference with political decisions decisions might spell the end of popular adher33 If anything, however, ence to judicial decisions.2233 the opposite seems 2 34 to be true. 234 Opinion polls suggest that the public perceives the Court more favorably than it perceives perceives the other two branches branches of governgovern35 ment. 223S The public takes interest interest in Supreme Court decisions and and appears appears widely to accept the role of the judiciary in resolving constitu236 In this context, judicial tional disputes. 236 judicial overruling of national national and by Phelps Dodge Corp. v. NLRB, 313 U.S. U.S. 177 177 employees to agree not to join join a union), overruled overruled by (1941). (1941). 229. See GERALD GERALD GUNTHER, 1985). GUNTHER, CONSTrUONAL CoNSl1TUTlONAL LAW LAW 453-54 (11th ed. 1985). invalidated several New New Deal measures as exceeding exceeding the power given 230. The Hughes Court invalidated eg., Carter Commerce Clause. See See, e.g., Carter v. Carter Coal Co., Co., 298 U.S. U.S. 238 (1936) (1936) Congress in the Commerce (striking down the Bituminous Coal Conservation Act of 1935, which established established price and labor labor rules for coal mines); (1935) (striking down mines); Railroad Retirement Bd. v. Alton R.R., R.R., 295 U.S. 330 (1935) the Railroad Retirement Schechter Poultry Corp. v. United Retirement Act of 1934); A.L.A. Schechter United States, 295 U.S. (1935) (invalidating (invalidating the National U.S. 495 (1935) National Industry Recovery Recovery Act's labor rules for the New York poultry market). Such activity led to Franklin Roosevelt's Court-packing plan. GUNTHER, Roosevelt's Court-packing GUNTHER, supra note 229, at 128-29. supra 231. Gregory A. Caldeira Caldeira & & James L. Gibson, relative. See Gregory Gibson, The Etiology of Public Public 231. I stress relative. Supportfor the Supreme Court, Court, 36 AM. Sci. 635, 660 (1992) (1992) ("[T]he Supportfor AM. J. POL. SCI. (u[T]he bolder the Court is in confronting the policies of Congress, the less confidence confidence citizens citizens bestow it as an institution."). institution."). 232. See Chemerinsky, supra 1254 nn.303-04, 306. supra note 73, at 1254 233. See Carter, supra 15, at 843 (describing supra note IS, (describing this argument: argument: "[Tihe u[T]he ultimate brake on the courts courts is the judges' judges' fear that if they go too far they will be ignored"). ignored"). 234. See Chemerinsky, supra & n.309 supra note 73, 73, at 1254-55 & n.309 (concluding (concluding that the Court has retained increased its power generpower despite despite its exercise of judicial judicial review). See generretained its legitimacy and increased V. Tushnet, Fol/owing ally Mark V. Followingthe Rules Laid Down: A Critique CritiqueofInterpretivism and Neutral Neutral Interpretivism and Principles, HARV. L. REv. 781, 807 (1983) Principles, 96 HARv. (1983) (describing two distinct meanings of judicial legitimacy). 235. THoMAS R. R. MARSHALL, 138.42 235. See THoMAS MARSHALL, PUBLIC OPINION AND AND THE SUPREME COURT 138-42 (1989) (stating polls consistently show Supreme Court outscoring Congress and the Executive (1989) branch & Gibson, supra supra note 231, at 640-41, branch with regard to public confidence); Caldeira & 640-41, 659 (noting public's support for Court not conditioned conditioned on basic basic support for its policies); policies); see also CuriaRegs: and Courts "To Philip B. Kurland, Curia Regis: Some Comments on the Divine Right of Kings and Courts "To Say What the Law Is" 581, 583 (1981) Is, II 23 A=z. ARIz. L. REv. 581, (1981) ("I venture that no governmental body history has maintained maintained so unblemished unblemished an escutcheon, free of venality, and personal vindicin history Supreme Court of the United United States."). States."). tiveness, as the Supreme 236. Professor Rosenberg obviously disputes the extent of public attention attention to Supreme Court


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state legislative decisions is relatively frequent and has become an ac237 American governance. 237 cepted cepted fact of American None of which is to say that this state of affairs affairs is permanent permanent or unquestioned. unquestioned. Critics of the Court, among them a former Attorney General General of the United United States, regularly attack the Court Court for creating "finding" those rights the Framers put into rights rather than simply "finding" 38 Moreover, the the Constitution.2238 Court has been an issue in the last last several elections, and the abortion debate suggests the trend is on the rise. If the Court ever deviates significantly from the public's views, it may face substantial opposition opposition again. The present point, however, is that the role of judicial review has grown grown alongside the rise of majoritarianism. Neither of these elements elements Framers' Constitution. But like held primacy in the early days of the Framers' majoritarianism, established majoritarianism, judicial judicial review has become aastrong and established 239 modem constitutionalism.239 aspect of modern Reprise: The Framers' Constitution 4. Reprise: Framers' Constitution 2400 They spelled The Framers created created a system of government.24 spelled out out many particulars but left others Over time the Constitution to history. Constitution particulars of has changed. History History has filled in some of the gaps, and even many of differently than in the Framers' the particulars particulars operate operate differently Framers' time. Witness, commerce power. Despite Despite these for example, the growth of the commerce theory changes, the most enduring enduring legacy of the Framers has been the theory of their Constitution. While particulars have changed, the Framers' particulars theory is what holds our Constitution together and what ties our Constitution to theirs. The Framers' theory was that a constitution constitution must must divide and balance liberty. 24 1 The Framers implebalance power to protect liberty.241 decisions. See ROSENBERG, 147, at 229-35 controversy about ROSENBERG, supra supra note 147, 229-35 (suggesting controversy about abortion abortion actually lower after Roe than before it). before it). supranote 15, 15, at 844 ("For better or worse, generations 237. See Carter, supra generations of Americans Americans have community."); Chemerinsky, interpretive authority of the legal community."); Chemerinsky, been socialized socialized into accepting the interpretive supra note 73, supra 73, at 1209 1209 ("None of the critics of the Supreme Supreme Court's Court's activism suggests that all judicial eliminated."); Winter, Upside/Down, judicial review should be eliminated."); Upside/Down, supra supra note 40, at 1924 (The ideas ideas that '~udicial "judicial review undemocratic" and "should review is undemocratic" "should stop" stop" are "unthinkable."). "unthinkable."). 238. See Edwin Meese III, III, Address to the D.C. Chapter Chapter of the Federalist Federalist Society Society Lawyers Lawyers Division (Nov. 15, 15, 1985), 1985), in in Construing Construingthe Constitution, Constitution, 19 U.C. DAVIS DAVIS L. REv. 23, 28 (1985); (1985); also ROBERT H. BORK, THE TEMPTING see also ROBERT H. TEMPTING OF AMERICA: AMERICA: THE POLITICAL POLmCAL SEDUCTION OF THE LAW (1990). LAW 143 (1990). 239. See Owen M. Fiss, Foreword. Fonns of Justice, Justice, 93 HARv. 1, 36 (1979); (1979); Foreword: The Forms HARv. L. REV. REv. 1, Winter, Upside/Down, to Upside/Down, supra supra note 40, at 1923 1923 (noting that no one in the legal academy is ready to give give up on judicial judicial review or declare declare Marbury Marbury wrongly wrongly decided). 240. See Carter, supra supra note 15, 15, at 847. supranote 190, at 1534 ("separation 241. 241. See Brown, Brown, supra ("separation of powers powers aimed aimed at the interconnected interconnected goals of preventing tyranny tyranny and protecting liberty"). The Framers Framers may have harbored a secondary efficiency in government, but clearly the doctrine doctrine of separation separation of powdary concern for greater greater efficiency ers was adopted to "preclude & "preclude the exercise exercise of arbitrary power." power." Id. at 1534; see also FARBER &


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242 mented that theory by creating a government government of separated separated powers. 242 Accompanying separated powers was a complicated Accompanying the separated complicated system of 243 The magic of the Constitution is that the inchecks checks and balances. 243 terlocking, interdependent, interdependent, interwoven, and mutually checking bodies of government could for two hundred counterbalance one anhundred years counterbalance liberty. 244 other, preserving preserving the Union and with it liberty.244 Many of the forces the Framers thought would serve as checks and balances have not operated balances operated precisely precisely as intended. For example, the Framers envisioned envisioned that Congress would be the strongest branch, and they set up elaborate checks upon it.245 Either because the Framers overestimated Congress' power or because overestimated Congress' because their checks checks worked worked too well, the Executive Executive has been, at least in the past quarter century, the strongest strongest of our elements of governance. As power has shifted to the Executive, Congress has struggled to develop new ways to balance balance that 6 246 But the Framers' Framers' broad theoretical theoretical view has continued continued to power.24 SHERRY, supra 175-218 (giving an SHERRY, supra note 78, at 51-145, 175-218 an overview overview of the Framers' proposals proposals and debates debates on the powers granted to each branch branch and the limitations limitations imposed on each in order to protect liberty and avoid usurpation of power, especially legislature); Spann, supra supra note especially by the legislature); 20, at 1975 & n.II (stating that Framers sought to establish & n.ll establish government government that would check incliinclination of factions to benefit themselves). 242. "The ''The principle of separated powers is a prominent feature of the body of the Constitution, dictating the form, function, and and structure of a government government of limited powers." powers." Brown, supranote 190, at 1513; see WOOD, supra supranote 192, exalted supra 192, at 604 (stating Framers expanded and exalted the "libertarian "libertarian doctrine of separation of powers" "foremost position in their constitutionpowers" to the "foremost constitutionalism"). Actually, the Framers' Framers' system of dividing and checking power is much much more elaborate elaborate than just separation of powers along the horizontal horizontal of the national national government. The The ConstituConstitution also established the vertical division federalism and numerous other structural checks. division of federa1ism See Sunstein, Sunstein, supra supra note 190, at 44. 243. "Mhe government ••• that its "[T]he Constitution had 'so contriv[ed] contriv[ed] the interior interior structure structure of government... several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.''' BURT, supra supra note 189, at 60 (quoting Madison in THE FEDERALIST No. proper places."' 51); see also also Brown, supra note 190, at 1531-32. 1531-32. Brown, supra supra note 5, at 182 (suggesting that a test for whether a Constitution Constitution 244. See BoaBrr, BOBBITT, supra works is whether it encourages "collaboration "collaboration and harmony" harmony" among constitutional constitutional institutions). 245. During the discussion over whether the national national judiciary should be associated associated with the executive executive in the revisionary revisionary power, Madison noted: It apprehended that notwithstanding It was much more to be apprehended notwithstanding this co-operation co-operation of the two departments, Experience in all the departments, the Legislature Legislature would still still be an overmatch overmatch for them. Experience States had evinced powerful tendency evinced a powerful tendency in the Legislature Legislature to absorb all power into its vortex. & suggested the necessity This was the real source of danger danger to the American American Constitution; & of giving every defensive authority to the other departments departments that was consistent with republican principles. 2 FARRAND, supra supra note 192, at 74; see also THE FEDERALisT FEDERALISr No. 48 (James Madison); THE FEDERALIST No. 49 (James Madison). This sentiment was impeachment power. was also expressed during the debates over the Senate's impeachment Pinckney did not approve of the measure measure because it would render the President President "too Charles Pinckney dependent on the Legislature. Legislature. If he opposes a favorite law, the two Houses will combine influence of heat and faction throw him out of office." 2 FARRAND, FARRAND, ag[ain]st him, and under the influence supra Gouverneur Morris thought the Senate could be trusted, supra note 192, 192, at 551. Though Gouverneur trusted, he Id. "the great danger to be apprehended." ld. called legislative tyranny "the 246. See, See, e.g., e.g., INS v. Chadha, 462 462 U.S. 919, 919, 960 (1983) (1983) (Powell, (powell, J., concurring) (discussing enactment of legislative enactment legislative veto for this purpose). Bill Eskridge Eskridge and John Ferejohn offer offer a strong


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operate, despite deviation from the way they intended the particulars to function. The system of cheeks checks and balances balances simply simply has taken on a 247 life of its own. 247 The lesson here is that majoritarianism majoritarianism and judicial judicial review have grown to be precisely the kind of checks and balances balances the Framers favored. These two forces, much changed since the framing, nonetheless have grown up together, both fostering and checking one an248 As majoritarianism other. 248 majoritarianism and judicial judicial review have achieved achieved some Framers' original design primacy, they have fit into the mold of the Framers' design and reinforced the design in the face of change. 5. Balances? 5. All All Checks and No Balances? We should therefore not try to legitimize courts in a manner different than the other government, for they simply are a fact other branches branches of government, of our constitutional constitutional system; rather, we should study the more practical question of how judicial judicial review actually operates operates as a check check and 249 Many balance. 249 of the checks and balances in the Constitution Many checks balances are fairly specific, specific, with power power checking power; power; for example, the President's veto power is set out quite clearly, as is Congress' override 250 Judicial review appears problematic to many because they Judicial appears problematic power. 2SO believe that, once a court reaches a constitutional constitutional decision, that decision flat-out trumps majority action. When the Supreme Court finds critique of the Supreme Court's decisions regarding regarding the lawmaking process. They argue argue that the Court has failed to adjust originalist modem administrative administrative state originalist views for the emergence of the modern decisions of the Court and that the individual individual decisions Court frustrate, rather rather than further, the Framers' Framers' intensupra Eskridge & & Ferejohn, supra tions regarding checks and balances balances in the lawmaking process. See Eskridge note 204. In essence, Eskridge and Ferejohn Ferejohn argue that the Court Court should permit the developdevelopinterbranch structures structures that fulfill the underlying underlying intentions intentions of Article I, § 7. The The shift in ment of interbranch interpretation they champion evolution of majoritarianism majoritarianism and judicial interpretation champion would be similar to the evolution judicial also Eskridge supra note 16, Eskridge & & Ferejohn, supra 16, at 167 (discussing review as checks checks and balances. See also legislative veto and need to "restor[e] constitutional balance original constitutional balance between between legislative "restor[e] something of the original presidential powers"). presidential and congressional congressional lawmaking powers"). 247. "We "We do well to remain attached attached to institutions that are of are often the products products more of accident than of design, or that no longer answer to their original our original plans, but that challenge challenge our resilience in bending old arrangements arrangements to present purposes with no outward resilience and inventiveness in change." COLLEGE, change." ALEXANDER ALEXANDER M. BICKEL, BICKEL, REFORM AND AND CONTINUITY: CONTINUITY: THE ELECTORAL CoLLEGE, THE CoNVENTION, CONVENTION, AND AND THE (1971); see also also Kramer, supra THE THE PARTY SYSTEM SYSTEM 3 (1971); supra note 51, at 285 285 ("Indeed, the best reading separation of powers may be that reading of the framers' intent with respect to separation they wanted to see how things things went while retaining retaining enough flexibility to develop appropriate institutional responses."). responses."). "structural safeguards diminished in 248. Spann, supra supra note 20, at 1978 (arguing that, as "structural importance, the significance siguificance of Supreme also BURT, supra Supreme Court Court protection protection increased"); see also supra note 189, at 29 (claiming that to call judicial review "deviant" is misleading; rather, it is "logical "logical review "deviant" 189, response" contradiction "between "between majority rule rle and equal self-determination"). self-determination"). response" to contradiction 249. Carter, supra 15, at 865 (asserting that theorists should focus on system of checks supra note 15, checks and balances, and the role of the Court in that context, rather than than on the Court's interpretive interpretive norms). 250. U.S. U.S. CONST. CoNST. art. I, § 7, cl. 2.


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merit to a plaintiff's claim of constitutional constitutional right, for example, that seems to end the matter: 1-0, Court wins. Isn't this all all check check and no 25 ' balance?2S1 balance? countermajoritarian difficulty arises from this apDiscussion of the countermajoritarian parent parent constitutional constitutional imbalance. Judicial review can can be and is used to check the actions of wayward majorities. But exactly how one checks check actions wayward the judges judges is unclear. Judges therefore therefore are seen as possessing a huge amount of power, and the rules for exercising that power are uncertain. uncertain. The typical scholarly scholarly response response is to offer a normative theory of of constitutionalism constitutionalism and judicial judicial review that contains contains a set of rules designed to constrain judges. Such constraint arguably arguably would limit the power of judges, providing providing some sort of internal check on the use however of the judicial judicial review power. The obvious problem is that, however many theories one might spin, judges seem neither to adopt these theories nor to be constrained constrained by them. The apparent apparent lack of judicial constraint gives rise to invariable and strident criticism. This entire concern concern with constraining constraining judges, however, does not rest on an accurate description description of our constitutional constitutional system. Judicial review appears to contain all checks checks and no balances balances only if one ignores important facts about our American "majoritariAmerican brand of both "majoritarianism" anism" and judicial judicial review. As the next section explains, the countermajoritarian countermajoritarian difficulty difficulty does ignore these essential facts.

B. The Faulty Faulty Premises Premises of the Countermajoritarian CountermajoritarianDifficulty Difficulty The countermajoritarian countermajoritarian difficulty rests on two premises: that the

bedrock constitutional government is accountability bedrock principle of constitutional accountability to the

25 2 conflicts with people, and that judicial judicial review review conflicts with this this principle. principle. 252 Although Although each each of these ideas contains some truth, both are seriously flawed as foundations for the countermajoritarian countermajoritarian difficulty. Each rests on an assumption that is highly contestable. contestable. These assumptions assumptions are, respectively, that there exists a "majority" "majority" whose will is represented by government "final" government decisions and that judicial decisions are "final" 251. 251. A A number of constitutional devices devices often are noted at this point in the argument argument to show where where balance lies. lies. For example, the Senate has the power of advice and consent consent with regard regard to U.S. CONST. CONST. art. I, 1, judges, U.S. CONsT. CoNST. art. II, § 2, and Congress Congress can impeach impeach errant errant judges. judges. U.S. § 3. Yet Yet the former has the most impact on the front end of a judge's judge's career, and the latter latter is so rare as to be meaningless. Standing alone, these devices appear to be of little use in resolving countermajoritarian difficulty. Indeed, one of the most powerful problems posed by the countermajoritarian powerful arguments made in support support of Congress' Congress' power to control federal court jurisdiction jurisdiction is the absence of PERRY, supra other effective checks. checks. See PERRY, supra note 5, at 126-28. 126-28. Yet this check check too rarely is utilized, constitutionality in certain supra note 173, and it is of dubious dubious constitutionality certain contexts. contexts. See Friedman, supra 173, at 57 57 (discussing uncertainty control federal jurisdiction). jurisdiction). uncertainty regarding Congress' Congress' power power to control supra notes 15-17; BIcKEL, 252. See supra BICKEL, supra supra note 2, at 16.


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and thus trump the will of that majority. This section seeks to replace these faulty assumptions constitutional government government assumptions with three ideas of constitutional that do comport with reality and begin to explain the judicial begin judicial role. The three ideas are that government government operates not to represent a majorintegrate the voices of many different different constituenity but to hear and integrate cies; that the constitutional text is spacious spacious enough to accommodate accommodate the several interpretations inevitably offered by shifting constituencies; interpretations inevitably constituencies; and that the process constitutional interpretation is dynamic, not process of constitutional static, giving primacy to different interpretations at different times. These three ideas undergird the vibrant national dialogue dialogue on constitutional meaning that goes on every day. As Part III will explain, this constitutional government government dialogic view describes the workings of our constitutional countermajoritarian difficulty. much better than does the countermajoritarian 1. Electoral Accountability 1. Electoral Accountability a. The faulty assumption assumption of a "majority." The first premise a. premise upon countermajoritarian difficulty rests is that decisions in ·our 'our which the countermajoritarian government must be made in electorally accountable fashion, either by government electorally accountable representatives. According to a fathe people themselves or by their representatives. miliar statement of the countermajoritarian countermajoritarian difficulty, the problem "thwart" the will of popular popular with judicial decisions is that they often "thwart" 253 The decisions of the other branches, or of majorities. 253 state and local decisions branches, 254 254 governments, Courts, on the governments, ostensibly represent represent popular will. other hand, are undemocratic. undemocratic. When a court finds in favor of a party asserting a constitutional constitutional right to be free from some government ac55 The astion, the court interferes interferes impermissibly impermissibly with majority will.2255 sumption underlying this premise goes to the very heart of the countermajoritarian difficulty. Those who worry about the countermajoritarian countermajoritarian difficulty favor decisions made by branches countermajoritarian branches other because such decisions ostensibly than courts because ostensibly represent represent the will of the "majority," while courts' decisions do not. This view, however, de"majority," while courts' decisions do not. pends for its coherence coherence on the assumption that there is an identifiable identifiable 56 assessed. 2256 can be be assessed. majority whose whose will can supra notes 52-54 supra note 52, at 613. 253. See supra 52-54 and accompanying accompanying text; Sherry, supra BICKEL, supra supra note 2, at 17. 254. BICKEL, 16-17; see Winter, supra supra note 24, at 1513 ("In the received wisdom, judicial re255. Id. at 16-17; invalidates the products of the majoritarian politview is seen seen as countermajoritarian countermajoritarian because it invalidates supra notes 52-54 ical process."); process."); supra 52-54 and accompanying accompanying text. aggregate of of 256. Pluralism rests on the notion that public good can be be determined determined by an aggregate supra note 190, at 32-33. Even Mark Sunstein, supra individual preferences. preferences. Sunstein, Mark Tushnet falls into into the assumption TuSHNET, supra govern. See TuSHNET, supra note 162, at 16 assumption that there is a majority whose will could govern. ("In ("In general general the choice choice made by a majority is to be be respected, but on some issues and in some contexts overridden."). contexts majoritarian majoritarian decisions decisions may be overridden.").


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countermajoritarian difficulty might deThose enamored of the countermajoritarian mur, arguing that what is important overturn the will of of important is that courts overturn representative popular representative branches. The Constitution Constitution does not rely upon popular majorities, repremajorities, the argument goes; rather, it establishes a system of representative government, with the representatives sentative representatives accountable accountable to the peo257 ple. 2s7 Thus, the difficulty arises whenever whenever courts overrule representative representative decisions. countermajoritarian diffiThis argument, however, cuts loose the countermajoritarian culty from the claim of legitimacy that moors it. The countermajoritarian "political" branches countermajoritarian difficulty posits that the "political" branches are "legitimate" because "legitimate" because they further majority will, while courts are illegitimate gitimate because they impede it. Part I already has suggested some empirical difficulty with this argument. But once one disclaims reliance on the argument that legislatures actually represent majority will, legislatures actually or that courts actually actually override override it, the countermajoritarian countermajoritarian difficulty loses its force. Absent a claim that legislative acts actually actually represent represent majority will, one only has an argument about the relative legitimacy of branch of - without regard to actual majority support -- of each branch government. But that is silly: the Constitution creates three "legiti258 mate" branches government, one of which is the judiciary. judiciary.2s8 Acabranches of government, demic constitutional theory, and not constitutional text, deems two of of the branches "legitimate," but not the third. Moreover, this argument branches "legitimate," merely raises the countermajoritarian countermajoritarian difficulty to another level of abstraction: to whom are the executive and legislative branches branches accountable?259 The countermajoritarian countermajoritarian answer must be "majority "majority will." will." able?2S9 Thus, countermajoritarian countermajoritarian theory rests explicitly on the notion that the other branches of government "represent" majority will in a way government "represent" the judiciary does not, which in turn turn rests on the assumption that there is a majority will. The premise that government electorally accountagovernment operates operates in an electorally ble fashion is seriously flawed. As the examples that follow make "accountable" branches of of clear, there is room to question whether the "accountable" government represent represent majority will. Beyond Beyond that, however, lies the even broader question whether there is such a thing as "majority "majority will" will" to be ascertained. Courts are supposedly at their countermajoritarian countermajoritarian worst when 257. BICKEL, supra supra note note 2, at 17. 17. supra note 201, at 1085 (recognizing 258. See Amar, supra (recognizing that all three branches represent the cf Chemerinsky, supra people); cf. supra note 3, at 77 (section aptly titled "The "The Three Branches Branches of of Democracy"). Democracy"). 259. On the concept of and problems with "representation," "representation," see HANNA F. PITKIN, PrrxIN, THB THE see HANNA CONCEPT OF OF REPRESENTATION REPRESENTATION (1967); (1969). CoNCBPT (1967); HANNA HANNA F. F. PrrKIN, PITKIN, REPRESENTATION REPRESBNTATION (1969).



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26O These they they strike strike down down congressional congressional enactments. enactments.26° These enactments, enactments, after ter all, all, have have garnered garnered the the support of a majority of both both houses houses of Congress and or mustered mustered the the twoand have have either either avoided avoided an an Executive Executive veto or thirds to thirds majority majority necessary necessary for an override. override. Nonetheless, Nonetheless, for courts to overturn congressional congressional statutes statutes on constitutional constitutional grounds grounds may not not be overturn 2 61 at all. Consider United States States v.v. Jackson, Jackson, 261 countermajoritarian countermajoritarian at which which involved involved a challenge challenge to the Federal Kidnapping Kidnapping Act on on the ground the Act Act impermissibly impermissibly burdened burdened the right to a jury jury trial. The Act Act provided provided that that a kidnapper kidnapper who harms harms her victim "shall "shall be be punished.., death ... if if the verdict of of the jury jury shall shall so recommend, or or ished ... by death... '2 62 The ... imprisonment ... if the the death penalty penalty is not imposed. imposed."262 ...by imprisonment... lower lower court court had had found that, because because death could could not be the penalty penalty absent absent a jury trial, accused kidnappers kidnappers could waive their their right to a jury and bench trial to avoid the possibility of of and plead plead guilty or accept a bench 2633 This opportunity death. 26 opportunity in in turn turn unconstitutionally unconstitutionally burdened burdened the 264 right to trial jury.264 The Supreme Supreme Court agreed and struck down down trial by jury. 265 Act. The Court concluded, the capital punishment punishment provision provision of the Act.26S however, that Congress would have wanted wanted the Act to remain remain in effect effect 2 66 and so the struck,266 Court severed severed even if the penalty provision was struck, the unconstitutional unconstitutional penalty provision and preserved preserved the Act, albeit albeit penalty.267 with no death penalty.267 countermajoritarian? Perhaps Was the Court's Court's action countermajoritarian? Perhaps it was. Where previously previously there had been been a legislatively legislatively mandated mandated death death penalty for kidnapping, there was no more. Even at this level of generalcharacter of the Court's decision countermajoritarian character decision ity, however, the countermajoritarian is dubious. Whether a majority of citizens, or even a majority of Congress, really favored the death penalty penalty for kidnapping is difficult to 268 As the Court's opinion makes clear, the Senate opposed the 268 know. knoW. opinion Senate opposed 260. Charles Black takes the view that such enactments enactments are the only ones that raise "the DECIMadison." CHARLES L. BLACK, philosophy or the political problems problems of Marbury Marbury v. Madison." BLACK, JR., DECI(1981). TO LAW LAW 70 (1981). SION ACCORDING ACCORDING TO 261. 390 U.S. 570 570 (1968). (1968). 262. 18 U.S.C. §§ 1201(a) 1201(a) (1964), (1964), as amended by by 18 U.S.C. § 1201(a), (Supp. (Supp. II 1970). 263. 262 F. Supp. 716, 718 (D. Conn. 1967). 264. 262 F. Supp. at 718. 265. Jackson, Jackson. 390 U.S. at 585. 585-91. 266. 390 U.S. at 585-91. 267. 390 U.S. at 591. 268. One empirical empirical study compared compared the views and voting records of 116 members members of Congress in 1958 with the views of their constituents. The study found a dishearteningly low relain each district on issues of social welfare and foreign policy tionship between the majority majority view in and what that district's representative thought was the district's majority view. Warren E. Miller Sc. REv. 45, 51 51 (1963). (1963). Congress, 57 AM. POL. SCI. & Donald E. Stokes. Stokes, Constituency ConstituencyInfluence in Congress. & perceptions and and their constitexist between the representatives' representatives' perceptions A much stronger stronger relationship did exist between the dominant issue of the time. view in the area of civil rights, arguably the dominant uents' actual majority view


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conference and ultimately capitudeath penalty provision even after a conference 269 lated'in a vote taken tak~n without debate. 269 The history of other statutes demonstrates demonstrates that this capitulation could have been part of a deal in which senators opposed opposed to the provision provision conceded the issue in order order to 270 They may even have capituobtain obtain something that mattered more. 270 lated because they did not know what they were voting on when when they 27 1 approved penalty.271 approved the penalty. countermajoritarian problems But this level of generality, at which countermajoritarian tend to get examined if they get examined examined at all, does not accurately accurately state the problem. The real question is whether a majority of citizens, or even Congress, favored the particular particular penalty provision that Consubsequently invalidated. gress actually enacted and that the Court subsequently Once the problem is stated properly, assuming assuming that the Court acted in a countermajoritarian countermajoritarian fashion becomes increasingly increasingly difficult. There was no evidence evidence that even Congress favored giving accused accused kidnappers the choice of a jury trial with the possibility of death or a bench trial sanction. Everyone concerned concerned with the case seemed seemed a with the lesser sanction. 272 Most likely Congress statute as written.272 bit squeamish about the 'statute 273 never considered the problem. 273 Once we acknowledge acknowledge that Congress Id; ROBERT A. DAHI., PLURALIST DEMOCRACY DEMOCRACY IN THE UNITED UNITED STATES: Id.; see ROBERT DAHL, PLURALIST STATES: CONFLICT CoNFLler AND AND CONSENT 134 (1967); Choper, supra CONSENT supra note 48, 48, at 820-21, 820-21, 838-39. 838-39. More recent studies suggest suggest a constituent preferences members of the House of RepresentaRepresentacloser tie between constituent preferences and the votes of members tives. See Joseph IdeologicalBehavior of Legislators. Joseph P. Kalt & & Mark A. A. Zupan, The Apparent Ideological Legislators: Testing for & ECON. for Principal-Agent Principal-Agent Slack in Political Political Institutions, Institutions, 33 33 J.L. & EcON. 103 (1990). (1990). 269. The The Act as originally enacted enacted in 1932 contained no capital punishment punishment provision. See Jackson, Representatives had favored the Jackson, 390 U.S. U.S. at 586. Although a majority of the House of Representatives attempt to persuade the Senate Senate to include include the provision would would death penalty, penalty, they feared that an attempt delay, or even defeat, passage passage of the bill. Not until 1934 was an amendment authorizing authorizing capital punishment enacted, and then only after amendment out out punishment after a conference conference committee reported the amendment after initial disagreement disagreement in the Senate. See 390 U.S. at 586-90 & nn.29-36. Whether Whether the Senainitially opposed opposed the death penalty punishment penalty provision because because they disagreed disagreed with capital punishment tors initia1ly or because because they disagreed with placing the capital punishment decision decision within the discretion of of the jury, rather than the trial judge, is not clear. supra note 3, & n.158. 270. See Chemerinsky, supra 3, at 78-79 & 271. See Nicholas S. and the Interpretation Statutes: Toward Toward a 271. S. Zeppos, Legislative History and Interpretation of ofStatutes: Fact-Finding Interpretation,76 VA. L. REv. 1295, (1990) Statutory Interpretation, 1295, 1311-12 & & nn.63-64 nn.63-64 (1990) Fact-Finding Model ofStatutory (noting that that enacted enacted bills alone in an average Congress (noting Congress total over 7000 pages and suggesting that this volume, combined combined with with the hectic hectic schedules of members members of Congress, prohibits legislators legislators from reading all bills proposed). 272. The The government, for example, maintained that Congress' failure to enact a capital capital punishment provision addressed defendants who "was no who pleaded guilty guilty or waived jury jury trial "was provision that addressed more than an oversight oversight that the courts can and should should correct." correct." Jackson, Jackson, 390 U.S. U.S. at 578. 273. In fact, Congress initially created the same problem in another, later-enacted later-enacted statute but corrected it it upon upon urging of the Department of Justice, who by that time had been schooled schooled in the corrected Department ofJustice, Jackson, 390 U.S. U.S. at 578 n.15 (citing 70 Stat. 540 (1956), (1956), difficulties of the Kidnapping Kidnapping Act. See Jackson, 18 U.S.C. § 34, 34, which aircraft and provided that violators whose 18 U.S.C. § which prohibited the wrecking wrecking of aircraft whose conduct caused caused death "shall "shall be subject ... ••• to the death penalty ..... • if the jury shall in its or, in the case case of ofa guilty, or or a plea of not guilty where the defendant discretion so direct, or, a plea plea ofguilty, by jury, Jackson)). trial by jury, if the court in its discretion discretion shall sha// so order." (emphasis in Jackson». has waived a trial During the the same same session aircraft-wrecking statute, Congress adDuring session in which Congress enacted the aircraft-wrecking


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probably goofed, goofed, the the countermajoritarian countermajoritarian nature nature of the the judicial judicial action action probably 274 Jackson is is dubious dubious at best. best,274 in Jackson But, one might might protest, protest, Jackson Jackson is an odd case. It It is is an old old case. It It But, cannot be be taken as the the norm norm when when congressional congressional statutes statutes are overcannot that Jackson Jackson cannot cannot be be taken taken as problem, however, however, is is not that ruled. The problem, Courts overrule overrule statutes statutes under under but that that there is no norm. Courts the norm, but of these these statutes statutes are are of such such moment moment numerous circumstances. circumstances. Few Few of numerous was embodied embodied in the statute. statute. The one can can say say the public's public's will was that one 275 and many statutes, statutes,275 and public undoubtedly undoubtedly has has little little cognizance cognizance of many public it does its reaction reaction is uncertain. uncertain. Indeed, the voting representarepresentawhen it when themselves have have little cognizance cognizance of many statutes, instead foltives themselves 276 These people of floor leaders leaders and and committee committee chairs. 276 people lowing the lead of 277 judicial occasions On some often are captured judicial captured by special interests. often congressional statutes certainly certainly appears appears to thwart thwart majority striking of congressional striking ded a technical technical amendment amendment to the Kidnapping Kidnapping Act Act but but neglected neglected to add add a similar provision on on ded the death death penalty. penalty. 390 U.S. U.S. at 579 n.15. n.15. the Statutory interpretation teachers would have have a heyday heyday with with this case. case. The The government government 274. Statutory Court to save save the statute by making the jury's jury's recommendation recommendation in in jury jury cases cases advisory advisory urged the Court urged only, putting putting sentencing sentencing in the hands of judges (something (something Congress Congress seems explicitly explicitly to have rejected), and then permitting judges judges also also to empanel empanel advisory advisory juries in cases of bench trials and and rejected), defendants guilty pleas. pleas. 390 U.S. U.S. at 572-73. 572-73. Alternatively, Alternatively, the government government argued that that all defendants guilty U.S at 584. The should be forced through through jury jury trials even if they wished to plead guilty. 390 390 U.S should should be upheld only after giving giving trial judges instructions instructions to dissent argued that the statute should 591-92 waivers were were not encouraged encouraged by the statutory statutory provision. 390 U.S. at 591-92 ensure that jury waivers (White, J., dissenting). The defendant, freedom freedom in sight, argued that Congress would not have U.S. at 589-91. 589-91. The wanted any kidnapping kidnapping statute if there were no death penalty provision. 390 U.S. appellees argued that, without its capital punishment punishment provision, provision, the Act Act would fail to distinguish appellees kidnappers who harmed their victims the penalties penalties for kidnappers victims and-those and. those who did not. The appellees U.S. at at the Act to stand absent such aa distinction. 390 U.S. claimed that Congress would not want the 590. Even this argument had some support in the record. The argument was that states already had kidnapping provisions; the advantage of a federal act was the additional penalty, which would not depend on state law. One congressman stated as much, arguing in favor of the death & n.31. The Court observed that only one congressman 586-87 & penalty. See 390 U.S. at 586-87 congressman made the argument, 390 U.S. at 587; but how many others nodded nodded their heads in silent agreement and voted for the death penalty? penalty? AntidiscriminaForeword-Antidiscriminaalso Guido Guido Calabresi, Foreword: 8, at 31; see also supra note 8, 275. See See CHOPER, CHoPER,supra Ignores), 105 HARv. L. DebateIgnores), Bork-Brennan Debate (What the Bork-Brennan tion and Accountability (What and Constitutional ConstitutionalAccountability of is rarely the product of ... is REv. 80, 88 n.l statutes ••• n.1 (1991) (1991) ("The precise language used in statutes of arbitrarily selected 'commitrepresentative democracy, but rather rather of chance, hired drafters, or of "). style.' "). tees on style.' of party leaders. Moreover, conoften results from the individual desires of 276. Legislation often passed, regardlegislation is passed, whether legislation determining whether power in determining gressional committees have have enormous power of hands of more acutely in the hands is focused more less of This power is of Congress. Congress. This desires of a majority of of the desires of bills. Finally, members of the the agendas for consideration of bills. who set the the committee chairpersons, who of legislation legislation passed by the reconcile different versions of appointed to reconcile the conference committees, appointed the conference to the that ultimately goes to the legislation that House power in writing the have enormous power House and and Senate, have President. 821-30. supra note 48, at 821-30. President. See Choper, supra 1361 (1985) (1985) REv. 1347, 1361 TExAs L. L. REv. of Democracy, Democracy, 63 TExAs Distrust of Briffault, Distrust 277. See See Richard Richard Briffault, 277. elections candidate elections the financing financing of candidate dominate the (book special interests interests dominate and special review) ("Private ("Private wealth and (book review) The New New Ray Forrester, Forrester, The as proposition campaigns."); Ray ballot proposition petition drives drives and ballot initiative petition as well well as as initiative the dependepen(describing the (1983) (describing 1. 1078, 1078, 1078-79 1078-79 (1983) 69 A.B.A. A.B.A. J. Constitutional Elections, 69 Buy Elections, Right to Buy ConstitutionalRight of of undue undue influence of the possibility possibility of and the on large large campaign budgets and dence candidates on dence of of political political candidates andEqual EqualProtection, Protection, Financingand CampaignFinancing Nicholson, Compaign contributing A. Nicholson, groups); Marlene A. interest groups); contributing interest


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27 8 striking of of congressional statutes isis surely not not alalwill. 278 But judicial striking 279 countermajoritarian. 279 ways countermajoritarian. Of course, course, the the vast majority majority of ofjudicial overruling overruling of of governmental Of activity is is concerned not with with statutes statutes or actions of the legislature, or even the the chief chief executive,280 executive, 28 0 but but with the the work of administrative administrative offioffieven 26 STAN. STAN. L. L. REv. REv. 815 815 (1974) (1974) (arguing that the the inequities inequities that that result result from from the financing of cam26 private contributions contributions compels compels campaign finance finance reform). paigns through large private 278. One One example example is is the case case of flag flag burning. See supra supranotes notes 140-45 140-45 and and accompanying accompanying text. text. 278. 279. Of Of course, this this discussion deals deals with the national nationallegislature. legislature. The The problems problems are comcom279. pounded when when state stateor or local locallegislative legislative activity is at issue. issue. This This is is aa point point the purveyors purveyors of of majorpounded itarianism often overlook. See, See, e.g., eg., BICKEL, BICKEL,supra supra note 2, at at 33 (criticizing (criticizing Court's overruling of of itarianism state legislation). legislation). But But see see CHARLES CHARLEs L. BLACK, JR., JR., THE THE PEOPLE AND AND TIlE THE CoURT: COURT: JUDICIAL state REViEW IN IN A A DEMOCRACY DEMOCRACY 120-55 120-55 (1960) (1960) (arguing that Supremacy Supremacy Clause Clause offers clear legitimaREVIEW tion of judicial overruling of state state legislative legislative decisions). tion When aa court court strikes strikes down down aa state state statute statute as countermajoritarian, countermajoritarian, there is an additional additional probWhen lem beyond beyond those those posed posed by by judicial judicial review review of of congressional congressional statutes. That is the the problem of of the lem relevant majority. majority. Consider Consider Ford v. Wainwright, 477 U.S. U.S. 399 (1986), (1986), in which the the Supreme relevant Court held held states states may may not execute insane individuals and invalidated Florida procedures Court procedures for determining whether whether a person is insane. Ford carries carries with with it all the problems with labeling judicial invalidation of any statute statute Ford judicial invalidation countermajoritarian. First is the problem of generality: Did the Florida citizens prefer countermajoritarian. First citizens really prefer Florida's procedure? Second Second is is the the "as "as applied" applied" problem: Florida's chosen chosen procedure? problem: perhaps perhaps the people favored the statutory provision but not have have approved approved of the Governor's interpretation interpretation of ofit. statutory provision but would would not it. Ifindeed If indeed the people did not want want insane insane individuals executed, executed, the Court's decision might have been the people did not been majoritarian in furthering furthering popular will rather than approving the work of elected elected representatives, representatives, majoritarian in whose decisions perhaps perhaps would whose decisions would result in the execution of an insane insane person. But third, what the people to know. know. Did Did they really care care about executing executing insane insane people? If If not, people wanted wanted is is difficult difficult to the entire decision the Court's Court's entire decision rested rested on a countermajoritarian countermajoritarian premise, although the Florida statute did appear to execution of the insane insane and thus also was "countermajoritarian." "countermajoritarian." did appear to prohibit prohibit execution of the Beyond all this, however, is the problem of relevant this, however, is the relevant majorities. majorities. Even if if the majority majority of FlorBeyond all ida citizens favored favored this ida citizens this particular procedure, implemented implemented as the Governor did, is that the relevant vant majority? majority? After After all, all, this this case case implicates implicates a right right included included in the federal Bill of of Rights. Rights. One could U.S. citizens that the the relevant relevant majority majority is therefore national. Perhaps Perhaps a majority majority of U.S. could argue argue that disfavored Florida's procedure. If the national majority majority was the relevant one, again disfavored Florida's procedure. If the national again the ConstituConstitution might have have proved majoritarian. majoritarian. Thus, pinning the Thus, pinning the countermajoritarian countermajoritarian label on on the Court is particularly difficult difficult in cases involving Even if if one one overcomes overcomes all all the the difficulties difficulties inherent inherent in an assumption assumption that that involving state state statutes. statutes. Even statutory statutory choice choice reflects reflects popular popular will, will, such a state state statute statute really represents represents a clash between between principles ples of of federalism federalism and and the the concept concept of of a national national Bill of of Rights. That, however, presents not a countermajoritarian countermajoritarian problem, problem, but but a problem problem of of relevant relevant majorities. Yet, as the debates debates over over abortion abortion and and the the death death penalty penalty demonstrate, demonstrate, the the rhetoric of of countermajoritarianism countermajoritarianism is often often most most heated heated with with regard regard to to overturning overturning state state legislative legislative judgments. 280. 280. Perhaps Perhaps the the best best case case for for the the countermajoritarian countermajoritarian difficulty is not not the overruling overruling of statutes, utes, but but judicial judicial invalidation invalidation of of executive executive action. action. After After all, the President, President, more than than anyone else, else, has has aa true true national national constituency. constituency. See See Choper, Choper, supra supra note note 48, 48, at at 846-47 846-47 (finding (finding the President President "the "the single single federal federal official official with with aa nationwide nationwide constituency" constituency" and and concluding concluding that the presidency presidency "comes "comes closer closer to to the the majoritarian majoritarian ideal than than practically practically any any other other national national office office in the modern modern western western democracies"). democracies"). Even Even a quick quick glance glance at the the history history books books proves proves this this argument argument overoverstated, The most most famous famous overrulings overrulings of executive executive action action involve involve situations situations in in which which the stated, however. however. The President's President's popular popular or or congressional congressional support support was was questionable questionable at at best. See, e.g., e.g., United United States v. v. Nixon, Nixon, 418 418 U.S. U.S. 683, 683, 713 713 (1974) (1974) (holding (holding that that presidential presidential privilege privilege must must yield to the the public's public's interest interest in in criminal criminal justice); justice); Youngstown Youngstown Sheet Sheet & & Tube Tube Co. Co. v. v. Sawyer, 343 343 U.S. U.S. 579, 579, 637, 637, 639 639 (1952) (1952) (Jackson, (Jackson, J., J., concurring) concurring) (noting (noting that that Congress Congress had had enunciated enunciated three three statutory statutory policies policies inconsistent inconsistent with with the the President's President's action). action). In In these these situations, situations, there there isis aa good good argument argument the the Court's Court's actions actions may may well well have have been been majoritarian. majoritarian. Moreover, Moreover, the the famous famous examples examples are are typical. typical. Rarely can a court Rarely can a court go go head head to to head head with with aa popular popular President President and and survive survive very very long. Witness Witness the the New New Deal Deal and and Roosevelt's Roosevelt's Court-packing Court-packing plan. plan. See See STONE STONE ET ET AL., AL., supra supra note note 66, 66, at at 180-81. 180-81.


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281 to the lowest administrative cials, from the loftiest cabinet officer 281 ciaIs, cabinet officer 28 2 actor. actor.282 The actions range from administrative administrative policymaking to application of administrative administrative rules. In these cases cases making making the countermajoritarian countermajoritarian difficulty stick is extremely extremely difficult. 283 Rust v. Sullivan283 provides one telling example. Rust involved the v. Sullivan decision of the Secretary Secretary of Health Health and Human Services to withhold "counfederal family planning funds from any program program that provided "counplanning" seling concerning concerning the use of abortion as a method of family planning" '2 4 The regor "referral "referral for abortion abortion as a method of family planning. "284 ulations promulgated promulgated to implement this policy were challenged challenged on a 28s The Supreme Supreme Court found the number of constitutional grounds. 285 286 That of challenges meritless and upheld the regulations. 286 a majority of Congress, let alone the people, favored the Court's result in Rust is "we agree with anything but clear. The Court said of the statute, "we language is ambiguevery court to have addressed addressed the issue that the language ous."' 28 7 Similarly, Similarly, "the legislative OUS."287 legislative history is ambiguous and fails to ' 28 8 So much for shed light on relevant congressional intent. oil congressional intent."288 knowing Thus, courts usually do not trump trump popular presidential presidential decisions. At the least, it is once again majoritarian when they do, a countermajoritarian countermajoritarian Court is overruling overruling a majoritarian difficult to maintain that, when President. 281. See, e.g., eg., Butz v. Economou, (1978) (suit against, inter alia, Secretary Secretary 281. See, Economou, 438 U.S. 478, 480 (1978) of Agriculture). 282. See e.g., eg., Jean Jean v. U.S. 846, 848 (1985) (1985) (suit (suit against against low-level low-level Immigration Immigration 282. See, v. Nelson, Nelson, 472 472 U.S. 846, 848 and Naturalization Naturalization Service Service officials). and officials). 283. 111 S. S. Ct. CL 1759 (1991). (1991). 283. 111 284. for Family Services, 42 C.F.R. §§ 59.8(a)(I) 59.8(a)(1) (1991). 284. Grants Grants for Family Planning Planning Services, (1991). The regulations also prohibited funded funded projects projects from engaging in any activities to "encourage, "encourage, promote or advoalso prohibited cate abortion as aa method of family planning." (1991). offamily planning." 42 C.F.R. §§ 59.10(a) (1991). cate abortion 285. of the funds and and doctors doctors who the funds funds sued on behalf behalf of 285. Grantees Grantees of the federal federal funds who supervised supervised the of themselves and and their patients. They claimed that the regulations X themselves regulations were not authorized authorized by Title X of the Stat. 1506 (codified of the Public Public Health Service Act, Act, 84 Stat. (codified as amended amended at 42 U.S.C. U.S.C. §§ §§ 300-300a-6 300-3OOa-6 (1988)), and they facially facially violated rights of Title X clients (1988», and that that they violated the the First First and Fifth Amendment Amendment rights and the First First Amendment X health health providers. Rust, 111 S. Ct. at 1766. 1766. and the Amendment rights of Title X 286. The Court Court first first found found that that Title the regulations. 111 S. Ct. at 1768. The 286. The Title X X authorized authorized the 111 S. authorizing language stated stated only that "[n]one the funds funds appropriated appropriated under this subchapter authorizing language only that "[n]one of the subchapter shall used in where abortion is is aa method of family planning." planning." 42 U.S.C. § 3OOa-6 300a-6 shall be be used in programs programs where (1988). The Court concluded concluded that to say say that the Secretary's Secretary's construction (1988). The Court that it was "unable "unable to construction of the prohibition require-a ban on counseling, X prohibition in §§ 1008 1008 to require.a counseling. referral, and advocacy advocacy within the Title X project, S. Ct. at 1768. project, is impermissible." impermissible." 111 S. 1768. The The Court Court next next addressed addressed the constitutional constitutional claims. The Court found no merit to the First Amendment stating that that "the "the general that the the Government Government may choose not to subsiAmendment claim, claim, stating general rule that dize speech applies with full force." dizespeech force." 111 S. S. Ct. at 1776. The Court disposed disposed of the Fifth Amendment claim by reaffirming reaffirming earlier earlier cases' cases' holdings that the government need not fund abortions and refusal to fund abortion abortion counseling counseling and advocacy and findings findings that that "Congress' "Congress' refusal to fund advocacy leaves a pregnant pregnant woman the same choices as if the government had chosen family-planning woman with with the same choices if the chosen not to fund family-planning services S. CL U.S. 490 490 services at all." all." 111 S. Ct. at 1777 (citing Webster v. Reproductive Reproductive Health Servs., Servs., 492 U.S. (1989)). (1989»). 287. 111 S. S. Ct. Ct at at 1767. 1767. 287. 111 288. 111 S. Ct. at at 1768. 1768. The The Court Court continued: time did Congress directly address address the S. Ct. continued: "At "At no no time did Congress 288. 111 issues of of abortion abortion counseling, counseling, referral, advocacy. The The parties' attempts to issues referral, or or advocacy. parties' attempts to characterize characterize highly


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what Congress wanted when it passed on authority to the agency. Moreover, congressional Secretary's congressional activity since Rust suggests the Secretary's 2 9 Congresses. of subsequent wishes the with action was not consistent consistent Congresses.289 As for the body politic, polls suggest that its will, while not clear, is 290 largely opposed to the agency's decision. decision. 290 Rust is an atypical case case because the regulation at issue received tremendous public scrutiny. The vast majority of administrative administrative actremendous tions are not as public and do not touch matters matters of such broad public concern. Rust is telling for just that reason: if we cannot tell whether whether countermajoritarian in such a promijudicial review is majoritarian majoritarian or countermajoritarian nent case, we likely will have little basis for making such a determination in the ordinary ordinary case. In Rust, the Court concluded that, in the absence InRust, absence of knowing what what 2 91 agency's interpretation. the agency's to the defer to Congress wanted, it should defer interpretation. 291 of This is consistent with the general rule regarding judicial review of 292 On its face such a rule might appear majoritarian. agency action. 292 agencyaction. The alternative, after all, is to have Article III judges decide all the academy for rules. Reviewing the rationales rationales offered offered by the Court and academy such'deference is instructive, however, for they indicate that deference deference such'deference decisionmaking hardly to agency decisionmaking hardly can be called majoritarian. majoritarian. Sometimes Sometimes deference deference to agency decisions is justified on the grounds 93 Putting aside whether of agency expertise.2293 whether such deference deference is wargeneralized, conflicting statements statements in the legislative history into accurate genera1ized, accurate revelations of congrescongressional intent are unavailing." unavailing." 111 S. S. Ct. at 1768. 289. President Bush vetoed legislation designed to overturn overturn the gag rule, and Congress Congress could Abortion Counseling Upheld, USA not override the veto. Maria Puente, Abortion Counseling Ban Upheld. USA TODAY, TODAY, Nov. 20, 1991 at lA. IA. Subsequently the Bush administration administration amended amended the gag rule to permit doctors to most give abortion advice, but public reaction reaction has been critical critical because because in publicly funded clinics most See, e.g., eg., Ellen counseling is done by nondoctors. See, Ellen Goodman, Goodman, Abortion Doublespealk Doublespeak, BOSTON wavering by White House on whether gag rule GLOBE, Mar. 26, 1992, at 17 (editorial criticizing criticizing wavering should be changed at all); Mixing Up the Signals, Signals, L.A. TIMES, TIMES, Mar. 28, 1992, at B7 (calling (calling amendments to gag rules his "most "most cynical"). President Bush's latest amendments 290. The The Rust decision triggered a flurry of polling activity, including including conflicting polls comcomFederation of America and the National Right to Life ComParenthood Federation Commissioned by Planned Parenthood RusL See Helen mittee. Except for the latter, the polls showed very strong public opposition to Rust. Helen WAsH. POST, Dewar, Hill Hill Moves Briskly on Abortion Bils Bills, WASH. POST, June 4, 1991, 1991, at A5 (reporting (reporting a Washington Post-ABC Post-ABC News 63% support overturn Rust); Renu Washington News Poll's finding that 63% support legislation to overturn Renu Abortion Groups, Pro and Con, Con, Report Differing Differing Poll Results, Results, BOSTON GLOBE, GLOBE, June 25, Sehgal, Abortion 1991, (Metro/Region) (Metro/Region) at 55 (reporting 1991, (reporting that although a Louis Harris Poll, commissioned commissioned by 74% opposed to the Rust decision, a Richard Planned Parenthood Parenthood Federation of America, found 74% B. Wirthlin Wirth1in Poll, commissioned commissioned by the National Right to Life Committee, found 48% 48% opposed opposed to to 48% in favor of the decision). and 48% decision). 291. 111 S. S. Ct. at 1769. 1769. 292. See Chevron Chevron U.S.A. Inc. v. Natural Resources Resources Defense Defense Council, Council, Inc., 467 U.S. 837, 842-43 842-43 (1984) (1984) (announcing that, if a statute is "silent or ambiguous with respect to the specific specific issue, the question for the court is whether the agency's agency's answer answer is based on a permissible construction of the statute"). statute"). struction 293. See, e.g., eg., Baltimore Baltimore Gas & & Elec. Co. v. Natural Natural Resources Resources Defense Council, Council, Inc., Inc., 462 U.S. 87, 103 (1983) ("[A] reviewing court must remember that the Commission predic103 (1983) Commission is making predic-




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ranted, expertise expertise does not speak directly to the majoritarian majoritarian problem; expertise expertise is not the same as accountability. Deferring to agency decisions on the grounds of expertise is no more or less majoritarian than deferring to the courts on those grounds - or to a queen, for that 294 matter. matter.294 arguments of acSometimes, however, deference is grounded on arguments 295 Perhaps countability. "[these officials] are most countability.29s Perhaps Bickel put it best: "[these often responsible elected and through responsible to officials who are themselves elected through whom the line runs directly to a majority.... majority... ~ [S]o long as there has been a meaningful delegation by the legislature to administrators, which is kept within proper bounds, the essential is essential majority power is' there ..... "chain-of-accountability" argument only is as . . .-296 "296 This "chain-of-accountability" strong as its weakest link, and any observer knows just how weak the 297 Political Political links are. The delegation doctrine is exceedingly exceedingly broad. 297 298 may or may not be effective,298 effective, and, perhaps more imporoversight mayor commentators suggest that oversight in itself may not be particutant, commentators larly majoritarian. 299 Moreover, many of the decisions reviewed by tions, within its area of special expertise, at the frontiers of science. When examining this kind of of scientific determination, as opposed to simple findings of fact, a reviewing court must generally be at its most deferential."). 294. Actually, deferring to expertise expertise may be majoritarian majoritarian in the sense that the people, too busy to bother with all the details details or lacking in the expertise expertise themselves to decide, might well 107-09 and accompanying text (discussing judicial supra notes 107"()9 (discussing judicial choose to defer to experts. See supra deference deference to experts). 295. See, eg., Chevron: Chevron: See, e.g., While agencies are not directly accountable accountable to the people, the Chief Executive Executive is, and it is Government to make such entirely appropriate appropriate for this political branch branch of the Government such policy choices choices - resolving the competing interests which Congress itself either inadvertently did not reof solve, or intentionally left left to be resolved resolved by the agency charged with the administration administration of the statute in light of everyday everyday realities. 467 U.S. U.S. at 865-66. 296. BICKEL, BicKEL, supra supra note 2, at 19, supra note 42 and accompanying 19, 20; see supra accompanying text. "Congress clearly general policy, 297. The The delegation delegation doctrine requires that "Congress clearly delineate[] the general the public public agency which is to apply it, and the boundaries boundaries of this delegated authority." authority." Mistretta Mistretta v. United States, 488 U.S. 361, 372-73 (1989) (1989) (quoting American & Light Co. v. SEC, 329 361, 372·73 American Power Power & 329 (1946)). The Supreme U.S. 90, 105 (1946». under U.S. Supreme Court has struck struck down only two delegation statutes under the doctrine, both in 1935. See Mistretta, Schechter Poultry Mistretta, 488 U.S. at 373 n.7 (citing A.L.A. Schechter (1935), and Panama Ref. Ref. Co. v. Ryan, 293 U.S. (1935)). Corp. v. United States, 295 U.S. U.S. 495 (1935), U.S. 388 (1935». For an in-depth & PEin-depth review of the history history of the delegation delegation doctrine, see HAROLD H. BRUFF BRUFF & PE· SHANE, THE LAW (1988). TER M. SHANE, LAW OF PRESIDENTIAL PRESIDENTIAL POWER 64-88 (1988). 298. A primary vehicle for congressional congressional control of agency action was the legislative veto, see Harold & Ernest Gellhorn, Congressional Control of Administrative Regulation: Regulation: A Harold H. Bruff Bruff & Congressional Control 1372-73 (1977), (1977), but the Supreme Study of Legislative Vetoes, Vetoes, 90 HARv. L. REv. 1369, 1372·73 Supreme Court invalidated executive branch branch invalidated the use of such vetoes in INS v. Chadha, 462 U.S. U.S. 919 (1983). (1983). The The executive has formal oversight 12,498, but 1JSe use of this oversight authority authority under Executive Executive Order Nos. 12,291 and 12,498, oversight Candorand Statutory StatutoryInterpretation, oversight is controversial. controversial. See Nicholas S. S. Zeppos, Judicial Judicial Candor Interpretation, 78 GEo. & n.270 (1989). (1989). GEO. L.J. 353, 399 & 299. ET AL, AL., CASES AND AND MATERIALS CONSTITUTIONAL LAW: 299. See See DANIEL A. A. FARBER FARBER ET MATERIALS ON ON CoNSI1TUTIONAL THEMES FOR THE CONSTITUTION'S THIRD CENTURY CENTURY (forthcoming 1993) 1993) (discussing how focusTHE CoNSI1TUTION'S ing oversight further rent-seeking activity). oversight in smaller units of Congress can encourage encourage and further


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courts inevitably are not subjected to particular efforts at oversight or granted any approval of a majoritarian nature. Rust again is instructive because it is atypical. Rust involved regulations approved at the the highest level of the executive branch and subjected to careful scrutiny. 30° Accountability should have been at its highest in Rust. Rust. Even tiny.300 so, Secretary Sullivan's action may well have been countermajoritarian countermajoritarian so, 30 1 Congress. 301 of Congress. contrary to was contrary likely was in a popular sense and likely will of to the the will Public choice theory has raised important questions about the extent to which the representative branches of government do in fact represent majority will, whether a voting process can ascertain the ma"majority" jority view, or even whether there is such a thing as a "majority" 3022 The preceding examples view. 30 examples drew in part from that critique. But beyond the critique lies a far broader broader problem with the idea that nonjudicial actors are majoritarian or that their actions represent majority will. The erroneous assumption, which pervades the countermajoritarian difficulty, is that such a thing as "majority "majority will" countermajoritarian "representative" branches. branches. No exists to legitimate decisions decisions of the "representative" such majority will is identifiable. Rather, majorities come and go as majority the public engages in debate. At best there is a constantly shifting tide of public opinion. The countermajoritarian countermajoritarian difficulty ultimately fails because it sees the majority and majority will as static, when in reality the viewpoint viewpoint of the populace majoritarianism populace is fluid and dynamic. The concept of majoritarianism sees government aggregate prefergovernment as an institution designed simply to aggregate 30 3 ences. ences.303 Government is one big ballot box, and when the results are 3°4 This in overstates in no no court court ought to tamper with them. 304 overstates the countermajoritarian public choices, but countermajoritarian difficulty's difficulty's simplistic simplistic view of public not by countermajoritarian difficulty, by very very much. In the world of the countermajoritarian mustering mustering aa "majority" "majority" viewpoint is possible because choices choices are bi300. 300. The The regulations regulations were adopted by the Secretary Secretary of of the Department Department of Health and Human Services President Ronald Reagan's last year Sullivan, 111 S. Ct. 1759, Services in in 1988, 1988, President year in office. office. Rust v. Sullivan, 1759, 1764-65 (1991). 1764-65 (1991). 301. 287-90 and accompanying accompanying text. 301. See supra supra notes 287-90 302. 302. For aa good summary summary of the the public public choice arguments arguments and and a careful careful analysis analysis of these arguments & FRICKEY, arguments that that raises raises questions questions of of how how they they should should be interpreted, interpreted, see see FARBER FARBER & FRICKEY, supra 38-62. See supra note note 28, 28, at at 38-62. See also also WILLIAM WILLIAM N. N. ESKRIDGE, EsKRIDGE, JR. JR. & PHILIP P. P. FRICKEY, FRICKEY, CASES CASES AND AND MATERIALS CREATION OF PUBLIC POLICY MATERIALS ON ON LEGISLATION: LEGISLATION: STATUTES STATUTES AND AND THE CREATION POLICY 49-51 (1988). (1988). 303. STUDIES IN JOHN ELSTER, ELSTBR, SOUR SOUR GRAPES: GRAPES: STUDIES IN THE SUBVERSION SUBVERSION OF OF RATIONALITY RATIONALITY 33 303. JOHN (1983) (1983) (noting (noting argument argument of of some some that that only role role of State is is to create create mechanism mechanism to aggregate aggregate preferences); preferences); TUSHNET, TusHNBT, supra supra note note 162, 162, at at 70 ("Just ("Just as as the the market market for goods goods aggregates aggregates consumer sumer choice choice through through the the mechanism mechanism of of demand demand and supply, supply, the the market market for public policy policy aggregates gates citizen choice choice through through voting."). voting."). 304. should tamper 304. Or Or courts courts should tamper with with them only only under under specified specified circumstances. circumstances. See Elhauge, Elhauge, supra supra note note 182, 182, at at 44-48 44-48 (discussing (discussing proposals proposals for for greater greater judicial judicial review review in light light of of the public public choice choice critique).


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life nary. We are either for something or against it. Yet in real life choices choices arise on a continuum. We must rank our preferences preferences and then determine determine how important important they are and what we reasonably can hope 30 5 In reality, our preferences to achieve. a.chieve. 305 preferences are extremely malleable, malleable, rela30 6 and changed tive, influenced influenced by choices stacked them,306 stacked against them, changed by 30 7 discussion. 307 They vary depending upon whom we are talking talking· to, what we are being asked to decide, when we are asked to decide decide it, and what information is available available at that time. Yet the countermajoritarian countermajoritarian difficulty does little to account for the chimerical chimerical nature of public opinion. Public choice literature literature establishes how this type of analysis causes aggregating preferences problems in the context of aggregating preferences on a societal level. The work of Kenneth Arrow, for example, suggests that the idea of a 30 8 Simply majority is incoherent incoherent because of the problem of cycling. 308 put, if three people have three separate separate preferences, preferences, the outcome outcome of a "majoritarian" will depend the order in which the votes "majoritarian" process process will depend upon upon the want.30 9 are taken, not on what a majority might want.309 Similar problems present themselves at the level of individual decisionmaking. First, individual decisions tend not to be binary (Do (Do you favor abortion rights?). Rather, many questions arise, such as whether favor abortion rights?). questions whether we would permit abortion in any situation, just in cases of rape or or 10 Important policy incest, without public funding, and so on. 3310 Important issues are too complex complex for our governmental system ordinarily to pose choices choices in a way that lets us express what we really feel. Second, agenda setting is a problem, for individuals individuals as well as in in the public sphere. Some people feel so strongly strongly about issues such as 11 alone. 3311 basis alone. that basis on that abortion that they choose their representatives representatives on representatives represent a variety of views, For many of us, however, representatives 305. 305. See BICKEL, supra supra note 247, at 16-17 (discussing (discussing the role of intensity of preference in majoritarian TUSHNBT, supra majoritarian politics); politics); TuSHNET, supra note 162, at 79-80 ("People who care deeply about an an issue regularly have a larger influence would influence in the legislative legislative process process than their numbers numbers alone would suggest."); of suggest."); Elhauge, supra SIlpra note 182, at 50, 65 (arguing that voters properly properly register register intensity of preference preference in the political political process). 306. See ELSTER, EISTER, supra counteradaptive preferences). supra note 303, at 109-24 (discussing (discussing counteradaptive preferences). 307. See ALLAN CHOICES, APT NORMATIVE ALLAN GIBBARD, GIBBARD, WIsE WISE CHOICES, APT FEELINGS: A THEORY THEORY OF NORMATIVE JUDGMENT (1990). JUDGMENT 247 (1990). 308. KENNETH ARROW, (1951). ARRow, SOCIAL CHOICE AND AND INDIVIDUAL VALUES VALUES 46-60 (1951). 309. 309. Thus, Einer Elhauge argues that by identifying identifying cycling problems Arrow perhaps made the case against a political process that would simply value ordinal preference rankings rankings (i.e., (i.e., pure majoritarianism) majoritarianism) without without regard to intensity of views, agenda-setting, and the like. Elhauge, supranote 182, & FRICKEY, supra supra 182, at 103-04. On the public choice critique generally generally see FARBER FARBER & supra note Republican Revival 1545-46 (1992). (1992). note 28; Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539, 1539, 1545-46 310. See infra infra notes 439-40 accompanying text (discussing polling data on abortion 439-40 and accompanying abortion choices). choices). 311. 311. Elhauge, supra supra note 182, at 41 n.41. n.41.


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312 We may and we we vote vote on the the bundle. 312 give up things things and We may be willing to give about which which we we have have an an opinion, opinion, but which matter matter less less than other other about issues. When the candidate-turned-representative issues. the candidate-turned-representative votes on matters about which which voters voters disagreed disagreed with her, her, however, there there is no no represenrepresenabout 3 13 will. 313 majority will. of majority sense of in the the sense not in tation, at least not Third, because our our individual individual preferences change constantly in in rereThird, factors, 3 14 societal societal preferences also are are consponse to a number of factors,314 31 5 or in flux. flux. Change can occur occur because of new information31S stantly in or simply because someone we respect expresses a different view. A good simply because someone A example is the transformative effect the discovery discovery that Magic Magic Johnson example had tested tested positive for the HIV virus had on our view of AIDS. Sudhad denly the the airwaves were flooded with information, people were more denly concerned, AIDS had gained in importance,316 importance, 31 6 and the stigma ofhavof hav3 1 7 When 317 ing AIDS probably decreased. one sudden event can have ing AIDS probably such an an impact impact on the populace, the notion of a static majority will such becomes ephemeral. Finally, to the views of others is integral to all Finally, accommodation accommodation to 31 8 318 aspects Sometimes we are persuaded. Someaspects of social existence. times we decide to accept the second best because it is all we can get, times we decide 3 19 to or we believe it is all we can get. 319 Sometimes we decide we have to live with something we do not like because accommodation is easier live with somethiIig we do not accommodation easier 320 Sometimes than other other alternatives. alternatives. 320 Sometimes others' others' views are imposed upon upon than 32 1 choice. 321 we have us and and we we feel feel we have no no choice. In a sense the countermajoritarian countermajoritarian difficulty treats popular will as the aggregation of fixed exogenous preferences,322 preferences, 322 when preferences preferences 312. CHOPER, note 8, electorate must buy its political 312. CHOPER, supra supra note 8, at at 13 13 ("[TIhe ("[T]he electorate political representation representation in in bulk form."); Elhauge, supra bulk form."); supra note note 182, 182, at 41 & & n.41. 313. CHOPER, supra supra note note 8, 8, at 13 ("Hardly ever ever will will a candidate candidate share all the the preferences preferences of of 313. CHOPER, an an individual individual elector."). elector."). 314. 1596 ("tastes 314. See, See, eg., e.g., Seidman, Seidman, supra supra note note 59, 59, at 1596 ("tastes depend upon upon context"). 315. ELSTER, 303, at supra note note 303, at 81, 81, 113 113 (questioning (questioning preferences preferences shaped with incomplete incomplete 315. ELSTER, supra information); 307, at information); GIaBARD, GIBBARD, supra supra note note 307, at 230 230 ("Sometimes ("Sometimes judgments judgments of competence competence lead lead us us to revise revise judgments judgments we started started out accepting."). accepting."). 316. 316. See See Anne Anne Michaud, Michaud, Home Home HIV HIV Test Test Kit May Soon Be on Market, Market, L.A. L.A. TIMES, TIMES, June June 9, 9, 1992, at 1992, at D7 D7 (noting (noting that that since since Magic Magic Johnson Johnson announced announced that that he he was was HIV HIV positive the public public isis "newly "newly concerned" concerned" about about AIDS); AIDS); Dave Dave Raffo, Raffo, Learning Learning the the Value of ofa Dollar, Dol/ar, FIN. FIN. PosT, POST, Apr. 27, 5, at at 51 51 (finding (finding that that the the Magic Magic Johnson Johnson story had had "a "a big big influence" influence" on on 85% 85% of of those those 27, 1992, 1992, §§ 5, surveyed). surveyed). 317. 317. See See Jim Jim Clardy, Clardy, Ashe Ashe Pays Pays Visit Visit to His His Hometown, Hometown, WASH. WASH. TiMm, TIMES, May May 7, 1992, 1992, at at B3. B3. 318. 318. This This idea idea isis central central to to the the notion notion of of "sour "sour grapes." grapes." ELS7SR, ELSTER, supra supra note 303, 303, at at 22; 22; see see id id. at at 109 109 ("[W]hy ("[W]hy should should the the choice choice between between feasible feasible options options only take take account account of of individual individual preferences if people people tend tend to to adjust adjust their their aspirations aspirations to to their their possibilities?"). possibilities?"). preferences if 319. GIBBARD, supra supra note note 307, 307, at at 241. 241. 319. GIBBARD, 320. this. See 320. The The slavery slavery clauses clauses in in the the Constitution Constitution likely likely offer offer an an example example of ofthis. See id. id. at at 238-41. 238-41. 321. Id 321. Id. at at 236-37. 236-37. 322. 322. See See TusHNEr, TusHNET, supra supra note note 162, 162, at at 46 46 (stating (stating that that liberal liberal tradition tradition "tend[s] "tend[s] to to treat treat each each




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323 Preferences necessarily are shifting and endogenous. 323 are continunecessarily 324 ally shaped and reshaped by public opinion. 324 Every minute is an ordering and reordering for each of us about what we want and care about. The assumption that there is a "majority" whose "will" is emgovernmental decisions is, at best, overstated. Decisions bodied in governmental must be made at specific times.325 times.325 At best, there may be one brief moment when a governmental governmental decision does represent majority will, though that moment may come and go in an instant as views and 26 The political process cannot possibly reflect indichoices change.3326 viduals' and society's constantly changing preferences. More likely, a governmental choice is the result of structured decisionmaking decisiomaking that governmental represents "majority will" only after ruling out many choices many people would have preferred. In this sense, the countermajoritarian countermajoritarian difficulty fails even to de"majoritarianism" that, as discussed in the last section, has scribe the "majoritarianism" evolved in our constitutional constitutional system. True, the franchise franchise has been been extended to many people, and democracy democracy has become more direct and less representative. But neither of these actual changes changes in our system has anything to do with the existence majority identifiable majority existence of an identifiable 327 Will.327 will. Thus, the first premise of the countermajoritarian countermajoritarian difficulty - that of us as an independent of those made and of us as an autonomous autonomous individual whose choices choices and values values are independent and held by others"); cf EiSrER, supra supra note 303, at 121 (arguing that standard held by others"); cf. ELSIl!R, standard theory of social social choice sees preferences "as "as given independently situation." The alternative "is "is to choice sees preferences independently of the choice situation." see preferences as causally Republicanism and the see preferences as causa11y shaped shaped by the situation."); Cass R. Sunstein, Sunstein, Republicanism Preference Problem, 66 181, 184 (1990) ("[W]hen Preference Problem, 66 CHi.-KENT Cm.-KENT L. REv. 181, 184 (1990) ("[W]hen preferences preferences are a function function of legal rules, rules cannot, cannot, without oflegal rules, the the rules without circularity, be justified justified by reference reference to the the preferences."). preferences."). 323. This foundation of 323. This is is an an important important foundation of neorepublican neorepublican thought. See Richard A. Epstein, Modern Republicanism -- Or the Flight from Substance, 1642 (1988) ("In Modem Republicanism Flightfrom Substance. 97 YALE YALE L.J. L.J. 1633, 1633, 1642 (1988) ("In one sense" sense" it "has to preferences are not exogenous.); one it "has to be correct" correct" that preferences exogenous.); Sunstein, supra supra note 190, 190, at 82 82 ("Preferences autonomous.... at ("Preferences adapt adapt to to available available options; options; they they are are not not autonomous .•.. [Plolitics [P]olitics properly properly has, of its its central ); has, as as one one of central functions, functions, the the selection, selection, evaluation, and shaping of preferences preferences .... ..••"); Sunstein, supra supranote 309, at 1541-43; ELSTER, supra Sunstein, note 309, 1541-43; see also ELSIl!R, supra note 303, 303, at 34-35 34-35 (discussing (discussing idea that political geared to changing preferences, aggregating them). that political system system could could be be geared preferences, rather than aggregating 324. See 307, at 247 324. See GIBBARD, GIBBARD, supra supra note note 307, 247 (noting that discussion leads us "to "to accept accept certain certain norms of accommodation"). accommodation"). norms of 325. See 303, at (noting that 325. See E.STrR, ELSIl!R, supra supra note note 303, at 38 38 (noting that decisions must be made at a specific specific time, even if disagreements are not worked out). if disagreements 326. Robert Robert Dahl Dahl observed observed in in his his now-famous now-famous article that that over half half of the the Supreme Supreme Court Court 326. decisions decisions striking striking down down congressional congressional legislation legislation occurred occurred more more than four four years years after after the legislation was supra note note 268, at 157 157 (adapted (adapted from Robert A. Dahl, Dahl, Decision-Making Decision-Making tion was passed. passed. DAHL, DAHL, supra in a Democracy: The Role of Court as a National in of the Supreme Court National Policy-Maker, Policy-Maker, 66 J. Pua. PUB. L. 279 (1957)). Where (1957». Where legislation legislation was was overruled overruled in in less less than than four years, years, Dahl Dahl found found that that Congress' Congress' policy albeit after 158-63. Id. at 158-63. policy view view generally generally won won out, out, albeit after aa struggle. Id 327. 100-01 (describing 327. See See also also BURT, BURT, supra supra note 189, 189, at 100-01 (describing how how the the view of those those who promote countermajoritarian mote countermajoritarian difficulty difficulty resembles resembles Stephen Stephen Douglas' Douglas' view view that that the slavery slavery question question should be should be resolved resolved by by majority majority rule: rule: "But "But Lincoln Lincoln also understood understood - as as Madison Madison had had grasped in in more hopeful times if we effort to more hopeful times -- that that if we abandon abandon the the effort to persuade persuade one one another, another, then then we will will have have embraced the the tyranny tyranny of some some over over others."). others."). embraced


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there is an identifiable identifiable majority will - simply simply fails fails to describe describe accuaccuthere rately the vitality vitality of of the American electorate. electorate. More significant significant for the the rately focus of this article, the transient nature of majoritarian transient preferences focus calls into into question question the notion that that courts courts are countermajoritarian. countermajoritarian. calls Courts cannot trump majority will where where no static, static, identifiable majorCourts ity exists. One may may disapprove of of what courts courts do, but but the basis for ity that disapproval must be something other than the countermathat the joritarian difficulty. b. Contrast: Contrast: the idea idea of constituency. constituency. Experience suggests that, b. rather than than having an identifiable majority, majority, we are aa nation best described as comprised of coalitions and constituencies, all clamoring to to constituency not in the sense of a fixed interest interest be heard. Here I use constituency group, although that would not be completely inaccurate. Rather, a constituency is a body of support for one or another position on an constituency issue before the body politic. Constituencies rise, fall, and shift as isissue sues come before the polity. Although the precise system of government the Framers established was largely a product of compromise, the Framers nonetheless nonetheless ended up with a system that permits varying, often overlapping, repreended 328 difAlthough the system may difsentation of different constituencies. 328 fer today from what the Framers Framers intended, their grand design is preserved. Members Representatives represent relaMembers of the House of Representatives tively small populations, likely to be relatively homogeneous. They tively populations, are elected every two years and thus are likeliest among elected elected offirepresented cials to be in touch with the people. Senators Senators originally originally represented state legislatures and now represent broader broader state state land areas; six years in office gives them a broader perspective. The President's President's constituency is the widest, and the President's President's term intentionally intentionally rests between between ency 329 the two. 329 Framers' design of multiple conof the other twO. The Framers' the length length of stituencies stretched stituencies stretched to state and local local governments, governments, each each with its own own representative systems. representative Each of the governmental governmental units grants voice to a constituency constituency in debates over national import. This is true not not only only of the over matters of national branches of government at the national level but also of the countless national countless branches government 328. 328. See See TUSHNET, TuSHNET, supra supra note note 162, 162, at 9-10 ("[IThe ("[T]he framers framers created created a federal structure structure that, that, as as aa practical practical matter, matter, requires requires the the concurrence concurrence of of many many representatives representatives with substantial substantial local local constituencies constituencies before before the the national national government government can can act."). Constituency Constituency representation representation may may not not . today today occur occur as as the the Framers Framers envisioned envisioned it. it. See See id. id. at at 13 13 ("Much ("Much of of what what we we know know about about contemporary porary politics politics belies" belies" Framers' Framers' assumptions assumptions about about representation.). representation.). 329. 329. This This description description of of constituencies constituencies does does differ differ from from the the Framers' Framers' design. design. The The Senate, Senate, chosen chosen from from state state legislatures, legislatures, was was thought thought to to represent represent parochial parochial interests. interests. See See Akhil Akhil R. Amar, Amar. Article Article III III and and the the Judiciary Judiciary Act Act of of1789: 1789: the the Two-Tiered Two-Tiered Structure Structure of ofthe the Judiciary Judiciary Act Act of of 1789, 1789, 138 138 U. U. PA. PA. L. L. REv. REv. 1499, 1499, 1512 1512 (1990). (1990). The The House House would would be be more more national national in in perspective. perspective. The The President, of course, would be chosen President, of course, would be chosen not not by by the the people people but but by by independent independent electors. electors.




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governmental bodies at the state and local levels. Moreover, our govgovernmental ernmental system allows for numerous nongovernmental nongovernmental ad hoc inter330 Rather than est groups, further giving voice to constituencies. 330 majority aggregation, then, we have have a debate debate among constituencies. constituencies. Babble is perhaps a more accurate word. Government cannot simply follow majority will, because none is readily identifiable. Government's job is to find guidance guidance and direction in the babble nonetheless. Given that no static majority exists, courts must be doing something in this system other than trumping tlVIIlping majority views. What courts do is similar to the task performed by other governmental similar governmental bodies -they give voice to constituencies constituencies under certain certain circumstances. Moreconstitutional interpretation, courts play over, with regard to issues of constitutional cona unique role of reaching into the body politic and thrusting one c~m stituency's view to the fore, making it - at least for a short while -31 the focus of a discussion that many call dialogue.3331 of This role of courts is spelled out in detail in Part III. 2. Judicial JudicialInterference Intelj'erence a. assumption of ofjudicial 'finality." The second prema. The faulty assumption judicial "finality." countermajoritarian difficulty is that judicial decisionmaking decisionmaking ise of the countermajoritarian conflicts with the first premise, because electorally unaccountable unaccountable 332 Lurking judges majority.332 in this argument argument is judges thwart the will of the majority. the implicit assumption that judicial decisions are finalfinal - that when a determines a claim of right to court, or at least the Supreme Court, determines have merit, a judicially judicially made choice is substituted for a democratically made choice. The "people" "people" have made a choice, but the courts have Sunstein, supra supra note 190. 190, at 43-45 (describing Framers' Framers' scheme 330. See Sunstein. scheme for constituting constituting government as series of interlocking constituencies). Frank Michelman Michelman describes describes this most vividly: The full lesson of the civil rights movement will escape whoever focuses too sharply on the visible, formal legislative legislatures, the councountry's most visible. legislative assemblies assemblies - Congress, state state legislatures. exclusive, or even primary, arenas arenas of jurisgenerative jurisgenerative politics politics and cils of major cities - as exclusive, Rather political freedom. I do not mean that those arenas are dispensable or unimportant. Rather consequential dialogue II mean the obvious points that much of the country's normatively consequential legislative politics, and that in occurs outside the major, major. formal channels of electoral electoral and legislative channels cannot possibly provide for most citizens modern society society those formal channels citizens much direct direct experience of self-revisionary. self-revisionary, dialogic dialogic engagement. Much, perhaps experience engagement. Much, perhaps most, of that experience experience must occur in various various arenas public life in the broad sense, some nominomiarenas of of what we know as public broad sense, nally political not: in the encounters encounters and and conflicts, conflicts, interactions interactionsand and debates political and some not: debates that arisein and around aroundtown meetings and and local localgovernment government agencies; and voluntary voluntary organiorganiarise agencies; civic and zations; and recreational managements, directorates directorates zations; social social and recreational club, clubs; schools public public and private; private; managements, and leadership leadershipgroups groups of organizations organizationsof all kinds; workplaces workplaces and andshop floors; floors; public events andstreet life; life; and so on. Those are all areas of potentially and potentially transformative dialogue. Republic, 97 YALE L.J. 1493. 1493, 1531 (1988) (1988) (emphasis added). NonetheFrank Michelman, Michelman, Law's Law~ RepUblic, less, Michelman less. Michelman insists at times that only judges write the story. 331. 331. See infra note 388. supra notes 23-24 and accompanying 332. See supra accompanying text.


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333 Courts that decision. 333 Courts apparently apparently get get the last last word. word. trumped that This notion of "judicial finality" seriously overstates overstates the impact of decision, however, even even aa decision by by the Supreme Court. A aa judicial decision, judicial decision decision is an an important word on any subject. But it is not not judicial 334 necessarily the the last last word. word.334 the last last Because the judicial word isis not the necessarily word, the countermajoritarian countermajoritarian difficulty loses force. word, are two ways in in which a judicial decision might mistakenly There are be considered the last word. The first is that a court's court's word in any given case dictates action to resolve that case. The other, far far more case. given case dictates resolve article, is that a court's word important for the purposes of this article, particularly the the Supreme Supreme Court's Court's -- on any given issue constitutes the particularly final say on that issue. issue Although the the latter sense of finality will play is Although playaa larger role here, it is useful to to begin begin by by observing observing that a court's word is not even necessarily useful final in in the context of a case. We all have been cautioned, and properly so, not to minimize the impact of a judicial decision. Most notaerly ble perhaps Cover's admonition admonition that judicial decisions are ble is Robert Coyer's 335 death.""33S texts, in that that they they deal deal "pain "pain and and death. not like other literary texts, 3 36 Judges decree things, and they happen. 336 But Cover was well well aware Judges decree things, 333. Robert Robert Burt Burt refers of "judicial supremacy," 333. refers to to the the general phenomenon phenomenon of'~udicial supremacy," and the primary object of recent book book is is to to argue replacement of of notions of judicial supremacy with "an object of his his recent argue for for replacement egalitarian conception" judicial review. review. BURT, supra note 189, at 6; see generally 103egalitarian conception" of of judicial BURT, supra generally id. id. at 103· 268 ("Judicial ("Judicial Supremacy Supremacy in in Practice"). Practice"). Burt's Burt's view is that 268 view is that judicial judicial supremacy is as troubling as tyranny of of the majority. Id. Id. at today's politics, the majority. at 102. 102. My own view is that, despite the rhetoric of oftoday's tyranny we largely largely have the system system Burt Burt wishes. wishes. Burt Burt does not necessarily necessarily see see it that way, way, largely because because we have the he fails fails to even judicial is action, he to see see that that even judicial inaction inaction is action, and and also also because because he overstates overstates the "finality" "finality" of of judicial For example, judicial action. action. For example, Burt Burt condemns condemns the the Supreme Supreme Court for its hurried hurried schedule schedule in in the Nixon Tapes Tapes Case. Case. Id. at 319-20. But given Id. at 319·20. But given the the Special Special Prosecutor's Prosecutor's request of of the Court, id. id. at at Nixon 318-19, aa decision would have 318·19, decision not not to to move move quickly quickly would have been been perceived perceived as some some sort of of statement statement in in Nixon's favor. does is is aa statement, statement, but overthe Court Court does but Burt, Burt, as as this this section section argues, over· Nixon's favor. Everything Everything the states the effect of Indeed, Burt Burt seems the chilling chilling effect ofjudicial judicial action. action. Indeed, seems at at times to deviate deviate somewhat somewhat from from states his only underscores princihis own own principles, principles, though though perhaps perhaps this this only underscores that, as appealing as his general general princi· ples they are are sometimes difficult to pIes are, are, they sometimes difficult to apply. apply. Burt, Burt, for example, example, seems seems to to favor favor a greater greater judijudi. cial "so grossly cial role role in in banning banning the the death death penalty penalty on on the the ground ground that that the the death penalty penalty is "so grossly subjugative it violates core values subjugative that that it violates the the core values of of the the democratic democratic equality equality principle." principle." Id. Id. at 343. 343. But But in in light light of ofBurt's Burt's own own evaluation evaluation of ofnational national sentiment sentiment in in favor favor of of the death penalty, id. at 330-31, 330-31, this this would would seem seem the the height height of of judicial judicial supremacy. supremacy. 334. "[w]e are 334. Commenting Commenting on Justice Justice Jackson's Jackson's famous statement statement that "[w]e are not not final because because we we are are infallible, infallible, but but we we are are infallible infallible only only because because we we are are final," final," Brown Brown v. v. Allen, AlIen, 344 344 U.S. U.S. 443, 443, 540 540 (1953) "As the historical historical record record proves proves overover(1953) (Jackson, (Jackson, J., J., concurring), concurring), Louis Louis Fisher Fisher rejoins: rejoins: "As whelmingly, whelmingly, the the Court Court is is neither neither final final nor nor infallible." infallible." FISHER, FISHER, supra supra note note 108, 108, at 244. 335. 335. Robert Robert M. M. Cover, Cover, Violence Violence and ana the the Word, Word, 95 95 YALE YALE L.J. 1601, 1601, 1601 1601 (1986); (1986); see see also also Sanford Sanford Levinson, Levinson, Law Law as as Literature, Literature, 60 60 TExAs TExAs L. L. REv. REv. 373, 373, 386 386 (1982) (1982) ("As ("As Chairman Chairman Mao Mao pointed pointed out, out, aa revolution revolution is is not not aa tea tea party, party, and and the the massive massive disruption disruption in lives that that can be triggered triggered by by aa legal legal case case is is not not aa conversation."). conversation."). My My own own response response to to Levinson Levinson is that that it can can be both. both. 336. 336. See See Cover, Cover, supra supra note note 335, 335, at at 1613. 1613. Cover's Cover's central central point point was was that that "[t]he "[t)he practice practice of of constitutional constitutional interpretation interpretation is is so so inextricably inextricably bound bound up up with with the real real threat threat or or practice practice of ofviolent violent deeds that itit is is -- and and should should be be -- an an essentially essentially different different discipline discipline from from 'interpretation' 'interpretation' in in deeds that literature ConstitutionalInterpretation: literature and and the the humanities." humanities." Robert Robert M. M. Cover, Cover, The The Bonds Bonds of o/Constitutional Interpretation: Of 0/




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that, although the bond between decree and enforcement enforcement is close, the 337 337 two are not the same thing. One reasonably expects that, in a society governed governed by the rule of law, enforcement enforcement will not often tarry far far 338 behind enforcement is by no means But enforcement behind a judicial decree. 338 automatic. continuum of nonenforcement Indeed, there is a continuum nonenforcement of judicial judicial decrees. At one end of the continuum continuum are the instances in which nonenforcement is legitimate in every sense because, as societal mechanisms mechanisms are structured, the court does not really have the "final" "final" word. In In the context of Cover's Cover's own discussion, for example, executive clemency clemency is always a possibility even after the opportunity opportunity for legal appeals appeals has 39 run its course in a death penalty case.3339 clemency is not comSuch clemency mon, but it does provide an entirely lawful, noncontroversial provide noncontroversial step between judgment and enforcement. At the other end of the 34 0 continuum continuum340 is open defiance. Judicial Judicial orders ultimately depend depend upon acceptance enforcement, and sometimes acceptance outside the judicial realm for enforcement, the lack of acceptance thwarts enforcement enforcement altogether. A familiar historical example is President Lincoln's failure to comply with Justice 1 ParteMerryman. Merryman. 34 341 An example example of more wideTaney's decree in Ex Parte spread interference with judicial spread and popular popular interference judicial orders is the footdrag342 decrees. 342 desegregation decrees. school desegregation accompanied federal court school ging that accompanied I do not mean to suggest even remotely remotely that defiance of judicial judicial decrees to appropriate thing. Defiance poses a real threat to decrees is a good or appropriate the rule of law, and those who defy judicial judicial decrees ought to pay the price. Sometimes they do and sometimes they do not. The fact simply judicial decrees do not constitute the final is that in many instances judicial the Word, Deed, and The Role. Role 20 GA. L. REv. 81S, 815, 816 (1986). (1986). II believe the dialogic story Word. The Deed. I tell here here is quite quite compatible with Cover's point. 337. See Friedman, supra note IS6, 156, at 7S3-67 753-67 (discussing techniques Friedman, supra techniques judges must use to obtain majority acceptance acceptance of decrees, and enforcement). Sadly, "pain "pain and death" of and thus enforcement). death" are part of the dialogue. Precisely because because enforcement enforcement is not automatic, our commitment to rights is tested tested by the extent to which which decision triggers activity. See Martha Martha Minow, Interpreting Interpreting Rights Rights: An An Essay for Cover, 96 YALE L.J. 1860, 1894 (1987). (1987). for Robert Cover, YALE L.J. 338. 335, at 1613 ("[J]udges' words .. .. .. serve supra note 33S, 1613 ("[J]udges' serve as virtual triggers for 338. Cover, supra action."). stylized" process of death penalty penalty appeals. appeals. See 339. Cover actually relies upon the "almost "almost stylized" Cover, supra supra note 33S, 335, at 1622-24. Gover, 1622-24. 340. In between, no doubt, is postjudgment postjudgment settlement of disputes. F. Cas. 144 (C.C.D. Md. 1861) 9485). Compare 341. 17 F. 1861) (No. 948S). Compare the remark attributed to President Worcester v. Georgia. Georgia, 31 U.S. U.S. President Jackson in in the wake of the Supreme Court's decision in Worcester 515 (1832): (1832): "John Marshall Marshall has made his law, now let him enforce it." F. it." Charles F. (6 Pet.) SIS Wilkinson, Indian History History on the Teaching Teaching of American History. History, Occasional Wilkinson, The Impact of Indian Occasional PaD'Arcy Newberry Library, D' AIcy McNickle McNickle Center for the History History of of pers in Curriculum Curriculum Series of the Newberry No. 2, at 111 (Chicago Conference, 1984). the American Indian, No.2, 156, at 76S-67 765-67 (discussing Supreme Court "toleration" "toleration" of defiance defiance supra note IS6, 342. Friedman, Friedman, supra of judicial judicial decrees).


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343 word in aa case. 343 the extent of of Far more important for present purposes, however, isis the 344 34 5 When finality accorded the lawsaying lawsaying344 of the the COurts. courts.345 finality function of When commentators complain about thwarting popular will, one one gets gets the sense they are not not complaining about what happens to a party in aa sense case. For For example, a court may arouse ire in the the popular press given case. when it overturns the conviction conviction of a violent criminal on the grounds grounds when that the confession was obtained in violation of Fifth Amendment Amendment that the confession 346 guarantees.346 concerned with the legitimacy of judicial reCritics concerned guarantees. view, however, seem most concerned concerned when courts, by rendering conconview, stitutional decisions, interfere with, invalidate, or overturn broader 347 Examples are the questions societal choices. 347 of whether to prohibit abortion or to engage in segregation. Precisely whenjudiciallawsaying when judicial lawsaying is at issue, however, is the fallacy Precisely of judicial finality most evident. Critics of judicial interference with of popular will will tend to see constitutional popular constitutional decisions as roadblocks to majoritarian action. Because the Constitution trumps all other legal majoritarian (read legitimate) legitimate) decisionmaking, a judicial decision, if final, would 34 8 frustrate majority will. will. 348 But judicial judicial decisions do not necessarily 349 349 effect. have that effect. Admittedly, Admittedly, authoritative authoritative judicial opinions seem seem to claim this sort of finality. finality. Perhaps the most notable such statement is Cooper Cooper v.v. 350 Aaron, "ulAaron, 350 in which the Supreme Court appeared to deem itself the "ul343. Robert A. and the the Teaching Teachingof the Parables. Parables,93 343. Robert A. Burt, Burt, Constitutional Constitutional Law Law and o/the 93 YALE YALE L.J. 455 (1984), adjudication when noncompliance is present. (1984), discusses discusses the the role role of of adjudication when this possibility possibility of noncompliance present. Burt argues argues that that judicial decisions, decisions, despite their inability to coerce coerce compliance, compliance, may may serve serve to impose "a ua course dialogic engagement," at 487, in which parties are forced to listen to one another another course of of dialogic engagement," id. id. at and respond. 344. Ann Althouse gets credit credit for excellent term. See Ann Althouse, 344. Ann Althouse gets for this this excellent Althouse, Standing, Standing, In Fluffy Fluffy Slippers 1177, 1182 Slippers, 77 77 VA. VA. L. L. Rv. REv. 1177, 1182 n.22 n.22 (1991) (1991) ("[Ihe ("[T]he word 'lawsaying'... 'lawsaying'••• [is] [is] derived from Marbury v. Madison Madison .... ..••")) (citation (citation omitted). omitted). Marbury v. 345. and decision concededly are not two distinct 345. "Lawsaying" "Lawsaying" and decision of a given given case concededly distinct things. "Judi"Judicial allowing formal and cial acts acts enable enable subsequent subsequent claims claims to to be be made made while while also also allowing and informal informal resistance to to the the very very boundaries boundaries enunciated enunciated by by the the court." court." Minow, supra supra note note 337, 337, at 1886. 1886. 346. Cf Stuart Taylor Jr., Hinckley Case Casll and Suspects'Rights, Suspects' Rights, N.Y. TIMES, TIMES, Feb. 25, 25, 1982, 1982, at at 346. Cf. stuart Taylor Jr., A24 A24 (questioning (questioning whether whether order order to to suppress suppress statements statements John Hinckley Hinckley made made on the day day of of his his arrest arrest for for shooting shooting President President Reagan Reagan "was "was aa case case of of carrying carrying a good good principle principle aa bit too too far"). 347. 347. Thus, Thus, the the inevitable inevitable topics topics are are school school desegregation, desegregation, abortion, abortion, the death death penalty, and and the the like. like. See See, e.g., e.g.• AcKERMAN, ACKERMAN, supra supra note note 14; 14; BiICKEL, BICKEL, PROGRESS, PROGRESS, supra supra note note 13; 13; BuRT, BURT, supra supra note note 189. 189. 348. THEORIES OF OF 348. See See supra supra notes notes 53-54; 53-54; see see also Ronald Ronald Dworkin, Dworkin, Rights as Trumps, Trumps. in THEORIES RIGHTS RIGHTS 153 153 (Jeremy (Jeremy Waldron Waldron ed., ed., 1984). 1984). 349. For aa strong strong view view that that political political events events often often alter alter Supreme Supreme Court Court decisions, decisions, see see Louis Louis 349. For Fisher, in Judicial Fisher, The The Curious Curious Belief Belie/in Judicial Supremacy, Supremacy. 25 25 SUFFOLK SUFFOLK U. U. L. REv. REv. 85, 85, 87 (1991) (1991) ("For ("For the the most most part, part, Court Court decisions decisions are are tentative tentative and and reversible reversible like like other other political political events."). events."). 350. 350. 358 358 U.S. U.S. 1 (1958). (1958).




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351 A strict reading of timate arbiter" arbiter" of of what what the Constitution Constitution says. says.351 strict of timate Cooper Cooper would would seem to say that the the Court Court is charged charged with with determining determining what what the Constitution Constitution says, says, and and once the Court has spoken, those those not not even even parties parties before before the Court Court are are bound. bound. Alexander Alexander Bickel Bickel read read it.352 But Cooper this way, though though he evidently evidently questioned questioned the the sense of ofit.352 But Cooper in in theory theory and and Cooper Cooper in practice practice are two two different things. Bickel well knew, civil disobedience disobedience can can and does underFirst, as Bickel 353 Again, this is not mine the finality of even even the the lawsaying lawsaying function. function.353 not to countenance countenance widespread widespread civil civil disobedience. disobedience. But even the Supreme Supreme perhaps acquiesced acquiesced in, the obvious Court seems to have have suggested, or perhaps Court 354 disobedient. 354 to price the pay will people some price to be be disobedient. fact that some people Far Far more important, however, however, is the orderly, not infrequent, completely pletely legitimate legitimate process process of testing testing the finality of judicial lawmaklawmak356 355 355 the right In ing. In Roe v. Wade, Wade,356 for example, the Court Court held held that right to choose abortion was a constitutionally constitutionally protected protected fundamental fundamental right. That was in 1976. Now, a mere fifteen years later, the Supreme Supreme 357 PlannedParenthood Court's decision in Planned Parenthood v. v. Casey redefined redefined the the right, right,357 Court's and at some time in the not-so-distant future the Court may overrule overrule 358 that constitutional constitutional protection. 358 Whether it does so or not, the right certainly action certainly has changed. changed. This change change did not occur as a result of action taken by the Court on its own. Rather, it was a function of state state legislegislatures continually passing laws that slid around, sought to narrow, Roe. 359 359 Each of those laws was litiand even blatantly blatantly challenged challenged Roe challenges were gated. But there was no widespread widespread cry that such challenges response to a somewhat somewhat acunlawful. Rather, the law is changing in response and the Rule Court and 351. See Burt, Burt, supra supra note 343, 343, at 472-73; Daniel Daniel A. Farber, The Supreme Court Rule of Law: Cooper v. Aaron Aaron Revisited, Revisited. 1982 1982 U. ILL. L. REv. 387. Cooper and its aftermath; derisively speaksupranote 2, at 265 (discussing 352. See BicKE., BICKEL, supra (discussing Cooper v. Madison"). issue... ing of the "decisive "decisive issue •.. going beyond beyond the fictions of Marbury Marbury v. Madison"). Southerners narrowly missed id. at 264-65 (noting that Southerners 353. See id. missed succeeding succeeding in opposition to 13, at 101-02, 106. A very good BIcKEL, CONSNr, supra note 13, Brown v.v. Board Board of Education); Education); BICKEL, CoNSENT, supra example is the area of school prayer, in which Supreme Court pronouncements have been widely supra note 5, at 196. BOBBmrr, supra disregarded. See BOBBrIT, supra note 156, at 766-67 354. See Friedman, supra 766-67 (discussing Spallone Spallone v. United States, 493 U.S. (1990), in which the Court appeared appeared to permit permit recalcitrant recalcitrant city council council members members to opt to 265 (1990), contempt fines that would bankrupt their city if pay judicial contempt if they chose not to comply with a judicial decree). ("Neither Lincoln nor Douglas accepted 355. See ACKERMAN, accepted Dred supra note 14, at 79 ("Neither ACKERMAN, supra Cooper Scott as if it were the last word."); Burt, supra supra note 343, at 477 (pointing out that the Cooper principle certainly does not bind new Justices). (1973). 356. 410 U.S. 113 (1973). S.Ct. Ct. 2791 (1992). (1992). 357. 112 S. "fear 358. See 112 S. S.Ct. at 2844 (Blackmun, J., concurring and dissenting) (expressing his "fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light"). accompanying text. 359. See infra infra note 433 and accompanying


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360 cepted process of political testing. 36O Plenty of arguments can be mounted against this description, but none of them seriously undermines it. For example, one might point out that Roe was final for for a time or that Roe would not have been been eroded eroded absent a change in judicial judicial membership. But the Supreme Court has changed its mind even even without a significant significant change in mem36 1 362 suggests. 363 361 to Bamette Barnette362 Gobitis suggestS. 363 Morebership, as the shift from Gobiti over, those cases show how quickly the law can change, as do the recent recent cases regarding victim impact statements statements in death penalty 364 To say that judicial decisions frustrate the will of the majorcases. 364 65 ity is simply too simple.3365 The populace populace certainly feels the impact of of judicial decisions; but, as I will argue presently, the converse converse also is true. That is why there is dialogue. b. Contrast: Contrast: the twin ideas ofspaciousness and dynamism. dynamism. Finality ideas of spaciousness and is neither likely achievable nor necessarily desirable. It is human nature to challenge challenge that with which we do not agree. We make mistakes and want to correct agreement on on correct them or see them corrected. Thus, agreement a rule of finality is virtually impossible to imagine. Yet, absent agree360. I confess some ambivalence ambivalence about this, as do my students when when we discuss Cooper Cooper v. Aaron, 358 U.S. U.S. 1 (1958). (1958). There is a very real tension between between finality and results we can live with. Students decisions such as Brown v. Board Board of Educ., 347 U.S. U.S. 483 (1954), (1954), Students invariably think decisions should not have recalcitrance and subjected to repeated challenge. But their cerhave been met with recalcitrance tainty begins enforcement of of begins to slip away with Roe, Roe. and fritters away completely completely when we discuss enforcement fugitive slave laws laws and state resistance. resistance. Ideally, I suppose, our moral compasses could could reflect reflect which decisions would, over time, gain widespread see widespread popular popular approval; approval; but then, the ability to see into the future would and would be useful in many many ways. Charles Charles Black discusses discusses this very problem and appears "good faith" test: appears to adopt a "good anything wrong in such action by The Court itself has since declared that it does not see anything Congress, caveat that such seems to be the common-sense solution, with the caveat such action, Congress, and this seems if taken without reason to believe it could could succeed, and merely for the purpose purpose of harassing harassing individuals and embarrassing embarrassing the courts, would obviously obviously lack the ingredient ingredient of good faith. BLACK, supra note 260, at 21. BLACK, supra 21. 361. (1940). 361. Minersville Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940). 362. 362. West Virginia State Bd. of Educ. v. Barnette, Barnette, 319 U.S. U.S. 624 (1943). (1943). 363. supranote 104, at 99 (discussing how changes in Court membership membership acted 363. See Gerhardt, Gerhardt, supra as a catalyst to overrule Gobitis); popular Gobitis); Sager, supra supra note 28, at 930 (discussing (discussing change in popular opinion Gobitis and andBarnette); A. POSNER, Barnette); see also RICHARD A. POSNER, THE PROBLEMS OF JURISopinion between between Gobitis PRUDENCE (1990) (arguing that Barnette Barnette represented change in "outlook" rather than rePRUDENCE 152 (1990) sponse to new information). 364. Compare U.S. 496 (1987) Compare Booth v. Maryland, 482 U.S. (1987) and South Carolina Carolina v. Gathers, 490 490 U.S. (1989) with Payne (1991). See Gerhardt, supra supra note 104, Payne v. Tennessee, Tennessee, 111 S. Ct. 2597 (1991). U.S. 805 805 (1989) at 80 (discussing (discussing use of certiorari certiorari to reshape reshape law in victim impact impact cases). 365. 365. Undoubtedly Undoubtedly the Court Court does frustrate popular will in some instances, and sometimes sometimes for a fair amonnt amount of time. See Robert H. Bork, Styles in Constitutional ConstitutionalTheory, Theory, 26 S. Tnx. TEX. L. REv. 383, 390 390 (noting that people can overturn overturn Supreme Court decisions, although "it "it may take decades accomplish the reversal evidence suggests such frustration is cades to accomplish reversal of a single decision"). But evidence is rare, and it is particularly rare that the Court frustrates majority will for a prolonged of prolonged period of if time. See DAHL, DAHL, supra supra note note 48, at 186-92 (stating that congressional congressional policy usually prevails prevails if majority majority sentiment supports supports it and that protracted protracted disagreement is rare).



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ment, finality finality will will not occur. 366 The The Court can say its its word word is final. 367 There There might might even be some benefit benefit to to pretending pretending the Court's Court's word is 368 people will ignore ignore judicial judicial decisions, or challenge challenge judicial judicial final. But people final.368 decisions evade judicial judicial decisions. decisions. Cooper decisions with with which which they disagree, disagree, or evade v. v. Aaron again is instructive. instructive. Cooper Cooper hardly hardly was was the the last word word on on school school segregation segregation for Little Rock, let let alone the rest rest of of the the nation. nation. Schools everywhere everywhere remained remained (and remain) segregated, segregated, and and still there 369 369 . is resistance. This lack of finality finality seems seems the inevitable inevitable result of of the general general indeindelack of terminacy terminacy of the the Constitution's Constitution's text. One need neither neither agree with nor nor even rely upon much much of the extended extended debate debate about about the general general deter3700 to accept the argument argument minacy minacy of language language and the reading of texts 37 3 7 1 The of constitutional constitutional indeterminacy. indeterminacy.371 debate about indeterminacy indeterminacy of of language language is a difficult difficult one that many people people find deeply deeply troubling. But the Constitution, Constitution, ironically, ironically, presents presents an easy easy case case on on which which there there is the 72 Nor Nor is the indeterminacy indeterminacy of much of the widespread agreement. agreement.3372 problem: the very idea of a living ConstituConstitution's language a problem: language be spacious, spacious, accommodating accommodating varying tion requires requires that its language 373 The spaciousness of the Constitution pro373 over time. interpretations interpretations spaciousness FISHER, supra 366. See FIsHER, supra note 108, 108, at at 233 ("No ("No decision by by the Court is ever final if the nation remains unsettled unsettled and and seriously seriously divided divided over over a constitutional constitutional issue.") issue.") supranote 367. See Burt, supra note 343, at 482 (arguing that that the Court is "not obliged obliged to admit" the pretending that the possibility of of noncompliance). noncompliance). Burt makes makes the interesting interesting point point that pretending the Court's Court's word may be useful useful to someone who wishes wishes an excuse excuse to follow the Court's Court's decision is the last word of Eisenhower's view of lead. See id. at 475 475' (questioning (questioning whether whether this description description fits President President Eisenhower's Brown v.v. Board Board of Education). Education). cover 368. After After listening to some of these ideas for a semester, a student left me this on the cover of a bluebook: Leo, you don't hold elected elected office; you only run this town because people think you run it. And the minute they stop thinking it, you stop running it. Crossing" -Gabriel -Gabriel Byrne, from "Miller's Crossing" Having never seen the movie, II cannot cannot vouch for the correctness correctness of the quote. DesegregatingPolitics: Politics "All-Out" School Desegregation S.Liebman, Desegregating Desegregation Explained, Explained. 369. James s. (1990). 90 CoLUM. COLUM. L. REv. REV.1463, 1465-79 (1990). oF INTERINTERSTANLEY FIsH, FISH, Is Is THERE A TEru 370. See STANLEY TExT IN IN THIs CLASS?: THE AuTHoRIY AUTHORITY OF Bow (1985). (1985). White also JAMEs HERACLES' Bow COMmuNmrEs (1980); PRETIVE CoMMUNITIES (1980); see also JAMES BoYD WHITE, HERACLES' makes the extended extended argument that the "questions about determinable determinable meanings meanings and intention are Id at 82. He denies that texts have concrete, certain meanings but nonetheless ...false ones." ones." ld. ••. nonetheless Id understandings" of texts are possible. ld. believes "shared "shared understandings" supra note 59, at 1580. 371. See Seidman, supra adjudication supranote 15, 15, at 847 ("The problem, all agree, is constitutional 372. See Carter, supra constitutional adjudication Wrong Questions Questions based on a text charitably described as indeterminate."); indeterminate."); Erwin Chemerinsky, Wrong ProfessorCarter's Carter'sApproach to Judicial Get Wrong Answers: An Analysis of Professor Judicial Review, 66 B.U. L. ambiguous" regarding important important (1986) (arguing that "the Constitution is silent or ambiguous" REv. REv. 47, 56 (1986) "[tihe text of the Constitution is not, by structural Schauer admits that "[t]he structural issues). Even Frederick Schauer .... [A]nyone [Alnyone with any sense constitutional questions •.•. answers to hard constitutional itself, going to provide answers Cases, 58 S. S.CAL. L. REv. REV.399, 439 (1985). that." Frederick Schauer, Easy Easy Cases, knows that." (1985). "[C]onstitutional argument which "prudential" argument: "[C]onstitutional 373. Philip Bobbitt thus offers a "prudential" the decision" decision" arises from is accentuated by the political political and economic circumstances surrounding the "[ifn constitutional constitutional questions, competing texts can almost always be found." BOBthe fact that "[i]n


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vides flexibility, so that the document can grow and change along with 374 the society it governs. 374 Without flexibility, every every material in the universe breaks under pressure. There is no reason to believe believe a constitution is different, as others' experiences with their own constitutions constitutions 375 confirm. tremendous pressure of two hundred years of confirm.375 Despite Despite this tremendous history, our Constitution has endured. The amendment process of Article Article V has hardly provided the flexi376 Over one third of the bility needed needed to preserve our Constitution. Constitution.376 amendments practically came with the document. A huge percentage amendments practically percentage of the remainder remainder deal solely with the franchise. The remaining remaining BITr, 60-61; see also id. id, at 177 ("The ('The particular Bill of Rights we have serves, BrIT, supra supra note 5, S, at 6().61; serves, and and seems chosen to serve, as more than a text for exegesis. It acts to give motif, a give us a constitutional constitutional motif, cadence cadence of our rights, so that once heard heard we can supply the rest on our own."). But see NAGEL, supra note 27, at 17 ("The Constitution reasupra Constitution was written down so that its words would provide rea· sonably permanent constraints."). sonably certain certain and permanent constraints."). 374. See Richard A. Posner, Bork and and Beethoven, 42 STAN. 1365, 1372·73 1372-73 (1990) STAN. L. REv. 1365, (1990) (comparing long-term contract, which requires requires either either formal amendment amendment or or (comparing the Constitution to a long·term flexible interpretation interpretation to adjust to altered circumstances). See generally generally Sanford altered circumstances). Sanford Levinson, Levinson, Accountingfor Constitutional ConstitutionalChange, Change, 88 CoNST. CONST. CoMMENTARY COMMENTARY 409, 417·28 417-28 (1991) excountingfor (1991) (discussing ex· plicit textual change numerous interpretive interpretive changes to the Constitution and change as opposed opposed to numerous questioning "amendments"); NAGEL, supra supranote 27, at 11·12 11-12 questioning whether whether some some or all all of the latter are "amendments"); ("[What 'permanent' constitu("[W]hat is surprising surprising is not the role of judicial interpretation interpretation in altering 'permanent' constitu· tional principles but the contrasting notion that the Constitution might have conhave plain, plain, durable con· tent."). Chief Justice Rehnquist agrees that the Framers often used "majestic generalities" generalities" in drafting used "majestic constitutional "general language" language" gives "latitude "latitude to those who would interpret interpret constitutional language and that "general the instrument to make that language forelanguage applicable applicable to cases that the Framers Framers might might not have fore· seen." William H. Rehnquist, The Notion of a Living Constitution. Constitution, S4 54 TEXAS TExAs L. REv. 693, 694 seen." (1976). "living Constitution" Constitution" and urges (1976). Nonetheless, Nonetheless, Rehnquist Rehnquist eschews eschews the notion of a "living unelected make decisions in reliance reliance upon the constitutional constitutional text simply to address unelected judges not to make areas the political political branches are not addressing, such as prison conditions. Id. ld. at 695. There is obviously between these against obviously some some tension between these two positions, one that Rehnquist plainly resolves against judicial underlying vision of the Constitution Constitution is majoritarian. judicial action simply because because his underlying 375. France France has had 16 constitutions and draft constitutions. constitutions. See Louis Henkin, Henkin, Revolutions Rav. 1023, 1024 (1989). Venezuela Constitutions, 49 LA. L. REv. Venezuela has had 25 constitutions. GisGis· and Constitutions, bert H. Flanz, Venezuela. Venezuela, in CoNSTITUTIONS CONSTrrUIONS OF THE CoUNTRIES COUNTRIES OF THE WORLD WORLD 1-14 1·14 (Supp. 1983) (Albert P. Blaustein & Gisbert H. Flanz Flanz eds.). eds.). 1983) Blaustein & 376. There is a vibrant vibrant literature literature about about the legitimacy for amending amending the Constitution outside of Article V. See, Amar, supra supranote 201; Ackerman, supra See. eg., e.g.• Amar, supra note 3, at 1016; 1016; David R. Dow, Case ofArticle V, IowA L. REv. 1, When Words Mean What We Believe They Say: The Case V. 76 IOWA I, 4 (1990). commentators endorse the concept (1990). Some of the commentators concept that Article V is nonexclusive nonexclusive and that sufficient "amend" the Constitution. Constitution. See Ackerman, supra supra sufficient evidence evidence of popular sovereignty can "amend" note 3; Amar, supra supra note 201. 201. Others' Others' claims are absolute and, and, to say the least, extravagant. extravagant. See Dow, supra, supra, at 4 ("My thesis is that the only way to amend the Constitution Constitution is in accordance accordance with the mechauism mechanism outlined in [A]rticle in [A]rticle V. My My further claim is that the mechanism outlined in My own own view, consistent with with [A]rticle V is clear, exclusive, and that it means what it says."). My the descriptive theme of this Article and my notion that the never-ending search for legitimacy legitimacy is is unproductive, unproductive, is that the Constitution so often has been amended amended outside outside of Article V, at least by judicial decision, that the question itself is of questionable questionable utility. More profitable is the question of when a formal amendment amendment ought to be required. See Levinson, Levinson, supra supra note 374; see also Sager, supra 933-34 (distinguishing between decisions about the Constitution, supra note 28, at 933·34 (distinguishing between decisions about Constitution, which "are "are closed, comparatively," and decisions authorized authorized by the Constitution; the former are closed, at least least comparatively," defined understood" to include the judiciary's judiciary'S defined as decided by the Constitution, Constitution, which is "broadly "broadly understood" interpretation interpretation of the Constitution).




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amendments -- largely largely taxes, taxes, alcohol, alcohol, and and Presidential Presidential succession succession -amendments of change change our our Constitution Constitution has had had to undescribe the the extent extent of do not describe 377 The Constitution Constitution has evolved evolved far far more more outside outside Article Article V V dergo.377 it.378 Interpretations Interpretations of constitutional constitutional clauses clauses have have underwithin it.378 than within gone sea sea changes changes from from generation generation to generation, generation, far outstripping outstripping the gone of many many explicitly explicitly worded worded amendments. amendments. Obvious Obvious examexamconsequence of consequence abound: the Commerce Commerce Clause, Clause, the Contracts Contracts Clause, the the Fourth Fourth ples abound: 379 One seriously Equal Protection Protection Clause, and so so on. on.379 seriously Amendment, the the Equal wonders if if the Constitution Constitution would would have have endured endured absent absent language language spawonders cious enough enough to accommodate accommodate such such change. cious Because the the Constitution Constitution is spacious, spacious, no single single offered offered interpretainterpretaBecause accepted as correct correct now now and for all tion of the text is likely to be accepted 80 The Court Court is is free to change its mind. The people people are free to time.3380 disagree with the Court. The The Court Court is free to disagree disagree with the the people. disagree disagree with The members of the Court are free to, and usually do, disagree disagreement occurs, the document document will take on new one another. As disagreement 38 1 meanings. 381 as significance of the explicit 377. None of this, of course, undermines undermines the significance explicit amendments, such such as 377. significance of those Thirteenth, Fourteenth, Fourteenth, and and Fifteenth Fifteenth Amendments. But much of of the significance those the Thirteenth, amendments also is the product of judicial judicial interpretation. interpretation. In addition, those amendments amendments were amendments constitutional change. product of a Civil War, obviously the least desirable desirable method method of constitutional the product 1041-50 378. See Terrance Sandalow, Constitutional Constitutional Interpretation, Interpretation, 79 MIcH. MICH. L. REv. 1033, 1041-50 Terrance Sandalow, (1981). Indeed, the more interesting interesting question question may be why the relatively relatively few amendments amendments we (1981). have were even necessary. A likely answer, suggested by the theory I am discussing, is that the amendment process actually actually picks up the slack when other dialogue dialogue fails. If the Court Court or other other amendment branches of government government cannot be convinced convinced to come around, then the amendment process kicks branches discussion people's last dialogic dialogic resort. This suggests in turn that the vast majority of discussion in, as the people's emphasizes the wrong subject. about amending outside Article V emphasizes been "refurbished 379. See Sager, supra supra note 28, at 895 (stating that the Constitution has been "refurbished also NAGEL, supra interpretation of its provisions"); see also from time to time through the judiciary's interpretation supra accomplished by interpretanote 27, at 11 ("Specifics ("Specifics cannot capture the scope of the alterations accomplished L. and the the Constitution, Constitution, 84 COLUM. Preferencesand CoLUM. L. tion over the years."); Cass R. Sunstein, Naked Preferences REv. 1689, 1729 (1984) (explaining how shift in attitude toward property had impact on interin at 1508 (discussing change in supra note 24, at pretation key constitutional constitutional phrases); Winter, supra pretation of key time). over time). Fourth Fourth Amendment's interpretation over does the the into account as he does 380. Judge Posner makes this point exceedingly well, taking into views: interpreters' views: intensity of the interpreters' the embarrassare good arguments, the If constitutional decisionmaking are If the only constraints on constitutional of ment is the number and strength of good arguments on both sides - on many sides - of good arguments issues. the hot issues. up ofaa dispute, you'll weigh up to the the outcome of indifferent to Heat Ifyou're you're indifferent Heat is is important here. If arguments, the side side that has the stronger arguments, nod to the give the the nod and give the arguments on both sides and the arguments commitemotional commitstrong emotional you have aa strong has good arguments too. But if you even ifthe weaker weaker side has even if but imprudent, to abandon ment to only unnatural, but be not only another, it would be to one one side side or another, arguments preponderance of arguments so slight, preponderance or even even not so your commitment of a slight, or on the basis of commitment on can be be Hence there there can held. Hence so weakly held. are not not so against commitments are side. Our deepest commitments against your side. observer would not think the practical indeterminacy even if aa disinterested observer an issue even about an indeterminacy about balanced. evenly balanced. competing arguments evenly competing arguments Question Up: The Question Richard A. Posner, theBottom Up: andFrom From the the Top Top Down Down and Reasoningfrom the Posner, Legal LegalReasoningfrom POSNER, (1992) (citing (citing POSNER, 445-46 (1992) REv. 433, 433, 445-46 U. CHI. Cm. L. L. REv. 59 U. of Rights, 59 ConstitutionalRights, of Unenumerated UnenumeratedConstitutional at 124-25). 124-25). supra note 363, at supranote BoBrrTr, Constitution," BOBBI1T, "participatory Constitution," we have have aa "participatory that we maintains that 381. Philip Bobbitt maintains 381. Thus, Thus, Philip


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Nor is the lack of finality necessarily a bad thing. Change both is 382 In reality, the process of constitutional constitutional inhealthy and inevitable. 382 383 Perhaps Martha Minow, in her terpretation static.383 terpretation is dynamic, not statiC. searching searching response response to Robert Cover, puts this best: Even beyond the particular right granted by the Supreme Supreme Court Court... •.. the claim communal dialogue. A claimant claimant claim of any right initiates a form of communal asserts a right and thereby secures secures the attention of the community through the procedures such procedures the community community has designated designated for hearing such claims. The legal authority responds, and though this response is temporary and of scope, it provides the occasion rary and of limited limited scope, occasion for the next claim. Legal rights, then, should be understood as the language language of a continuing process rather than... than . . . fixed rules. Rights discourse discourse384 reaches temporary be made. new claims from which points from resting points which new claims can can be made. 384 Moreover, such dynamism is critical critical to the success success of the venture. Judges too are ,human, human, and judges get things wrong. For example, judicial decisions may be too broad, and experience will suggest suggest tailoring. Judicial decisions are experiments, and experiments rarely rarely are 385 38s failures. dismal are they Sometimes successful. completely completely Sometimes are dismal failures. Finality would curtail curtail the evolution of our Constitution; dynamism dynamism encourages it. Constitutional meaning changes because people disaencourages Constitutional gree about what the text means. Dynamism is to be encouraged, encouraged, for interpretation of our fundathe dynamic dynamic process helps formulate the interpretation 386 mental charter. between Of course, there is a balance to be struck between charter.386 dynamism and finality. Just as evolution and change is valuable, dynamism valuable, the rule of law is essential to a stable society. To stress stress "finality" "finality" may even be beneficial, because beneficial, because it corrects for the human tendency to edge too enthusiastically enthusiastically toward dynamism. But dynamic dynamic the system is. Under the countermajoritarian difficulty, legitimacy Under countermajoritarian legitimacy rests on finding some normative "exterconstraints on judges. But no such "externormative set of constraints recognize that nal" constraint presents presents itself. The alternative alternative is to recognize Constitution spaours is a dynamic dynamic system of interpretation, with a Constitution cious enough to permit interpretive disagreement. This disagreement disagreement supra note 5, at 238, and insists that that all constitutional constitutional actors play play their part in interpreting interpreting the document. Id 185-86. Id. at 185-86. 382. See See ACKERMAN, ACKERMAN, supra note 14, at 34 ("[Ihe ("[T]he Constitution is more more than an idea. It is an generations of Americans as they mobilized mobilized .... ). •••• "). evolving historical practice, constituted constituted by generations 383. See Chemerinsky, supra supra note 73, at 1256-57 1256-57 (arguing that the "evolving" "evolving" nature of the Constitution Constitution was resolved resolved as early early as Chief Chief Justice Marshall's opinion in McCulloch McCulloch v. Maryland, 17 U.S. Wheat.) 415, 427 (1819». (1819)). U.S. (4 Wheat.) 384. Minow, supra supra note 337, at 1875-76 1875-76 (footnote omitted). eg., Lochner v. New Sandford, 60 U.S. See, e.g., New York, 198 198 U.S. 45 (1905); (1905); Dred Scott v. Sandford, U.S. (19 385. See, How.) (1856). How.) 393 (1856). Amendment metaphor of a marketplace marketplace of ideas seems apt here. Judicial 386. The First Amendment pronouncements pronouncements are speech containing containing ideas, just like any other speech. There is no reason such such ideas would not benefit benefit from a process of reconsideration reconsideration and modification. modification.



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leads leads to a dialogue about about interpretation. interpretation. In In this dialogue dialogue the courts explain -- but it is is not not have a voice -- an an essential essential voice voice as I soon will explain have voice that that pretends pretends to to shout shout out out the crowd. a voice FROM "DIFFiCULTY" "DIFFICULTY" TO TO "DLLOGUE": "DIALOGUE": THE THE JUDICIAL JUDICIAL ROLE ROLE III. FROM iN IN CONSTITUTIONAL CONSTITUTIONAL INTERPRETATION INTERPRETATION

challenge now now is to define a judicial judicial role in our constitutional constitutional The challenge countermajoritarian of the premises system that sidesteps the countermajoritarian sidesteps the the faulty premises difficulty and integrates integrates the triple virtues of spaciousness, dynamism, difficulty ofjudicial judicial review are constituency representation. Many theories theOries of and constituency constructed with an ideals; these these theories theories are constructed by their their own terms terms ideals,· by "ought" but reality often falls short "ought" in in mind. mind. "Oughts" "Oughts" are are important, important, but 38 7 387 The alternative normative first principles. alternative is to to. describe describe of such normative My goal here is to describe the the manner in which which rather than than define. My rather courts actually actually operate operate in society. This description description should resonate actually describes describes the world world with readers for the simple reason reason that it actually which we live. in which I call the process process of judicial judicial review that actually actually occurs occurs in the 3888 The term emphasizes that judicial dialogue. 38 term emphasizes judicial reworkaday world dialogue. workaday interactive than generview is significantly significantly more interdependent interdependent and interactive Constitution is not interpreted interpreted by aloof judges ally described. The Constitution constitutional interpretaimposing imposing their will on the people. Rather, constitutional 389 politic. 389 and the tion is an elaborate elaborate discussion discussion between judges judges and the body body politic. republicanism 387. Cf Cf. Epstein, Epstein, supra supra note 323, at 1633 (describing (describing how normative vision of republicanism falls short as a descriptive matter). 388. 388. I am not the first to observe this dialogue, or to use the term. See AcKERMAN, ACKERMAN, supra supra "conversation" the Supreme supra note 13, at 111 (discussing "conversation" BICKEL, CONSENT, CoNSENT, supra note 14, at 5; BICKEL, "Power"and Court Court has with society, lower courts, and so forth); Stephen L. Carter, The Morgan Morgan "Power" Constitutional Decisions, CHI. L. REv. 819, 851-59 (1986); Decisions, 53 U. CHI. Reconsiderationof Constitutional the Forced ForcedReconsideration candor supra note 104 (arguing for greater candor Michelman, supra Michelman, supra note 330, at 60; see also Gerhardt, supra and elaboration elaboration on the value value of judicial judicial precedents precedents in order to facilitate facilitate dialogue dialogue on the stability sizes, and I have been theories come in many shapes shapes and ~izes, been influconstitutional law). Dialogic theories of constitutiona11aw). enced by many of them. I also have have tried to develop the idea of dialogue significantly significantly more more than others, many of whom simply allude to it. See Epstein, supra supra note 323, 323, at 1633 ("While ("While both deliberation, they do not give us any guimen [Sunstein and Michelman] Michelman] praise the virtues of deliberation, dance as to the form that deliberation deliberation should take or the ends that it should should seek."). One notable BURT, supra supra note 189. exception is Robert Burt's new book. See BURT, In his his recent that less dialogue is better. In 389. Robert Robert Nagel advances the novel perspective that interpretation of the Constitution creates uncertainty book, Nagel implies that too much judicial interpretation "uninterand upsets shared meanings. See NAGEL, supra supra note 27, at 7-12. 7-12. Nagel argues that an "uninterpreted constitution," "from practice rather than from constitution," in which the Constitution gets its meaning "from superior to the process of dialogue. II agree with some of be superior interpretation," id. at 12, would be interpretation," Nagel's central points, for example that certain constitutional issues are better left unresolved. unresolved. Congress' supranote 173, at 56-58 See Friedman, supra 56-58 (arguing that uncertainty is a virtue regarding Congress' power to control federal jurisdiction). jurisdiction). Nonetheless, Nagel seems to overstate the extent to which which that judicial should be avoided. This article demonstrates that interpretation can or should judicial particijudicial interpretation national debate regardplay a vital role in national pation, while not contributing to settled meaning, can playa ing the meaning of the Constitution.


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American body body politic politic consists consists of of numerous numerous constituencies The American heard and and striving striving to to prevail prevail on any given issue. GovGovclamoring to be heard ernment's task is to reconcile the views of these constituencies, find ernment's task 390 consensus when possible, reach a compromise, and move forward. 39O Courts playa play a vital vital part in this this task. task. Constitutional Constitutional courts courts adjudiCourts cate claims claims of of right and and challenges challenges to to government action that purportedly trench upon mandated institutional institutional arrangements. Courts resolve these disputes by participating participating in and fostering debate debate about resolve disputes government seeks to act, conthe proper course of government. When government will object, claiming that that the action violates established stituencies will rights, or tramples on a constitutionally mandated structural arrangement. The The Constitution's Constitution's spacious spacious text permits divergence on these ment. questions. It provides a framework for constituencies to disagree and questions. struggle over the document's meaning. The Court, like all other institutions, speaks to the meaning of the text. In this sense, the Court is, tutions, like all other branches branches of government,391 government, 391 an active participant participant in the debate debate over the Constitution's meaning. In another sense, however, the Court is able to do much more. The Court facilitates and shapes the constitutional debate. The Court sparks discussion as to what the text should mean constituency's interpretation, or mean by siding with one constituency's synthesizing synthesizing several, as to what our norms should should be. The Court dictates how how the dialogue will proceed by choosing one interpretation. tates interpretation. The process of reaching an interpretative consensus on the text is dyinterpretative consensus The process of reaching 392 The Court may offer an 392 namic. interpretation interpretation that is operative operative for a namic. time, but but the Court's opinions the Court's opinions lead debate on a path that often ultitime, 393 Not coincidentally, mately interpretation. 393 coincidentally, the acacmately changes changes that that interpretation. cepted cepted interpretation shifts and changes changes as constituencies constituencies shift and and grow in strength. This process of constitutional constitutional interpretation interpretation hardly hardly pits the Court against views of various against the the people. people. Rather, the Court mediates mediates the views 394 394 people. The process is interactive, like all mediation, The process is interactive, like mediation, and the ultipeople. 390. Robert Burt 390. Robert Burt describes describes similar similar arguments arguments about about the the function of government government in The Constitution 96-99. This notion also stitution in in Conflict. Conjlict. BURT, BURT, supra supra note note 189, 189, at at 96-99. also comports with both both Burt's Burt's and of how and my my own own description description of how judicial judicial review review operates. operates. See id. id. at at 99, 102 102 (describing Lincoln's Lincoln's view view of of the the Dred Dred Scott Scott decision decision and and suggesting suggesting "the "the possibilities possibilities for rekindling rekindling this this Lincolnian Lincolnian ideal"). 391. 391. See See, eg., e.g., BURT, BURT, supra supra note note 189, 189, at at 99 99 (describing (describing Madison's Madison's view view that that the the Court Court is is but but one of the the Constitution). Constitution). one interpreter interpreter of 392. 392. Philip Philip Bobbitt Bobbitt offers offers an an elegant elegant expression expression of ofthis this idea. idea. He He describes describes aa "mutually "mutually affectaffecting ''all constitutional constitutional actors" actors" interpret interpret the ing reaction reaction between between aa society society and and its its law" law" in in which which "all constitutional constitutional text text and and "participate "participate in in creating creating constitutional constitutional decisions decisions of of principally principally expressive expressive significance." significance." BOBBITT, BOBBITr, supra supra note note 5, 5, at at 184-85. 184-85. 393. an interpretation interpretation remains remains constant constant for some some time time itit accretes accretes legitimacy. legitimacy. See See BoBBOB393. When When an arTr, BITr, supra supra note note 5,5, at at 236 236 (describing (describing how how holdings holdings become become "true" "true" over over time). time). 394. 394. Bickel Bickel himself himself seemed seemed to to recognize recognize this, this, at at least least early early on, on, when when he he said said that that the the Court's Court's


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mate participation by all interested parties. Simmate result depends depends upon participation ply constitutional interpretation ply put, our process of constitutional interpretation is a dialogue.

A.

Dialogue The System of Dialogue

constitutional dialogue occurs. This section tells the story of how constitutional Because Because the dialogue dialogue is ongoing, this story could begin at any point. Moreover, Moreover, telling the story in all its complexity would require far greater exposition than is possible here. A complete narrative would require require writing in several directions directions at one time, in order to track the contours of the interpretive itself. We think and write in a interpretive dialogue itself. linear mode, however; my narrative therefore however; therefore follows our method of of constitutionalism deviates thinking. This description of American American constitutionalism from the account account offered by the countermajoritarian countermajoritarian difficulty; difficulty; the narrative thus implicitly asks the question which description description provides a better portrait constitutional interpretation interpretation actually actually occurs. portrait of how constitutional This story begins with governmental governmental action. Such action may be taken by what we deem a majority - through the legislature legislature - but significant this need not be true. It may not even be the norm. A significant portion of government government action that affects individuals is taken by officials or by collectives of officials that represent "majority" in only represent the "majority" 395 But this manner.395 narrative the most theoretical theoretical and questionable questionable manner. starts with some governmental governmental action that affects an individual. The individual balks. He believes that the government has overstepped its bounds. "I have a right," right," he asserts. (Individuals also may structural guarantees, but this description description will foassert violations violations of structural cus on claims of right.) individual's claim is adjudicated right.) The individual's (although adjudication adjudication is not the only way to resolve a claim of right). Evidence and arguments are mustered. The adversarial adversarial process process produces some some answer as to whether the individual's right was violated. A single judge resolves the claim in the first instance. Of course course one judge rarely settles the dispute. Her decision inevitably is appealed to another tribunal. The more important the issue, participate... If the governmental governmental action action the likelier more judges will participate affected a number of individuals, a number of separate adjudications affected separate 396 Several may ensue. There may be conflicting decisions. 396 Several jurisdicjudgment "continuing colloquy judgment on an issue likely will reflect popular popular will through through the Court's "continuing colloquy with the political institutions .... " BICKEL, supra supra note 2, at 240; see institutions and with society at large ..•. also BURT, supra supra note note 189, 189, at 23. 395. accompanying notes 280-81. 280-81. 395. See supra supra text accompanying 396. See Sunstein, ("[D]isagreement can be a creative force. NaSunstein, supra supra note 309, at 1562 ("[D]isagreement tional institutions were set up so as to ensure a measure measure of competition competition and dialogue; the federal federal systems systems would produce both experimentation experimentation and mutual controls."). controls.").


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If the issue is of general importance H importance the Supreme Court may hear the case. At this point in the" the process, an issue, case, is issue, not just a case, clearly clearly being debated. The Court will hear argument about the issue, which tailored throughout the litigation by the process which will have been tailored of winnowing winnowing and synthesizing. Groups that might be affected will will file their own briefs and will offer help to the parties. Debate is sharpened. The Court issues its decision. The Supreme Court is important, like the President, or Congress: it is the "last" "last" judicial judicial voice, at least 98 The public notices for this round.3398 when the Supreme Court de399 Reporters generating Reporters cover the cases the Court will hear hear - generating cides. 399 interest debate. 4 Some people interest - and the decisions, which generate debate.400 decision agree with the Court; others are outraged. People discuss the decision in formal meetings, or in informal gatherings, or they act alone. Articles are written commenting commenting on the Court's decision. More lawsuits are brought, some formulated specifically to test the bounds of the 4011 Town councils act. School boards act. LegislaCourt's decision.40 402 tures act at every level of government. 4°2 This cycle cycle of action action creates more media attention. Some issues become come more important than others. The Court has made some previ4033 They formulate ously dormant issues important. People take sides.40 397. redundancy inheres in the system, apparently apparently pursuant to the 397. A certain certain amount of redundancy supranote 162, dialogic Framers' desire to limit government power. TusHNET, TuSHNET, supra 162, at 9-10. On such dialogic redundancy in specific specific contexts, see Robert M. Cover & & T. Alexander Alexander Aleinikoff, Aleinikolf, Dialectical Dialectical Federalism. Habeas Corpus and the Court, Court. 86 YALE L.J. 1035, 1035, 1048-50 1048-50 (1977) Federalism: Habeas Corpus (1977) (describing federal-state eral-state dialogue in the context of habeas habeas corpus litigation); Jack M. Beermann, Government Official Torts and the Takings Takings Clause: State Sovereign Immunity, B.U. L. Official Clause: Federalism Federalism and State Immunity, 68 B.U. REv. 277, 335 & (1988) (describing dialogue in governmental & nn.230-32 (1988) governmental tort litigation); Judith A. S. CAL. L. REv. 837, 882 (1984) A. Resnik, Tiers; Tiers, 57 S. (1984) (describing federal-state federal-state dialogue in context of habeas corpus litigation). 398. On On the the special special role role of of the the Supreme Supreme Court, Court, see Friedman, supra supra note 173, at 10-28. 10-28. 398. 399. Robert Robert Cover found this uniqueness "jurispathic." '~urispathic.JJ In Cover's view, law is created created by various communities, but the hierarchy of decision leads courts, and particularly the Supreme Supreme 1982 Term Courl1982 Court, to suppress one law in favor of another. Robert M. Cover, The Supreme Court -- Foreword: and Na"ative, Narrative, 97 L. REv. RlV. 4, 4, 40-44 40-44 (1983). thesis, while Foreword: Nomos Nomos and 97 HARv. L. (1983). Cover's Cover's thesis, while true in a sense, places too much weight on the finality of judicial decisions. A court's choice of one law law may ultimately lead to communal communal adoption of quite another law. 400. Martha suggested to me that the role of the media is yet another important important Martha Minow suggested structural part of our system system of self-governance self-governance that may not operate operate precisely as the Framers intended but but nonetheless nonetheless bears the seeds of their thinking. In this regard regard it is interesting interesting to intended compare Gerald Gerald Rosenberg's Rosenberg's conclusion compare conclusion that courts have not had a great impact on the women's women's rights movement, movement, ROSENBERG, supra rights supra note 147, at 226-27, 226-27, with his own reports of the media's strongly worded to the the contrary. See id. id. at 173 (citing, for example, a news story strongly worded comments comments to referring to Roe v. (1973), as "a landmark decision"). I, perhaps more than v. Wade, 410 U.S. 113 (1973), Rosenberg, tend tend to think that, that, if the media says it enough, it gains some truth. Rosenberg, 401. Or any court's decision; the Supreme Supreme Court is not the only catalyst, merely merely the most most visible one. 402. Michelman's Michelman's description, supra note 330, is appropriately appropriately vibrant. 402. description, quoted quoted supra 403. In so doing, people participate participate in writing the story about the Constitution's meaning.


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opinions. They listen as others speak, and thus they change their opinions. They vote, or mail in a check to an organization, organization, or write their their representative in the legislature. A political campaign ensues. Promises are made. Candidates Candidates are elected, including Presidents and including Presidents senators. These candidates have views, shaped throughout the debate, candidates shaped 4 4 404 judges are appointed. The judges judges have on judicial candidates. candidates. 0 New judges 40 5 views similar to those of the officials who appointed them. 4Os Cases 40 6 come to these new judges.406 The judges judges observe observe legislative legislative action and 4077 They work around the note the "unworkability" "unworkability" of prior decisions.40 prior decisions. They confront confront the prior decisions. New Justices also Court,408 or perhaps perhaps the Supreme Court are appointed to the Supreme Court,408 "hears" the people. The people dig in; the Court bails out. The finally "hears" Constitution is re reinterpreted, interpreted, and its meaning changes. 409 This is So it goes in infinite progress. progress.409 only a tiny glimpse at an Despite Despite my great respect for much of Frank Michelman's MicheIman's work, I thus disagree disagree with him in one very fundamental respect. ''To "To be precise," precise," MicheIman Michelman writes, "we do not write the story unless we happen to be Justices." Justices." MicheIman, Michelman, supra supra note 330, at 65. To the contrary, people write the story every day. The story is written written when when police police officers officers conduct illegal searches, when teachers invite students to engage in prayer despite Supreme pronouncements, and when legislaSupreme Court Court pronouncements, tures refrain from adopting adopting restrictive restrictive abortion laws despite Court invitations to do so. 404. "On "On a larger scale, over time, the Court's decisions on many important issues have a strong effect on politics; politics affect-elections; affect-elections; elections affect who is appointed to the Court, which affects the Court's decision; and so on." Chaos and and the Court, Court, 91 on." Glenn H. Reynolds, Chaos COLUM. L. REv. RV. 110, 114 (1991). CoLUM. (1991). 405. Gerhardt, supra supranote 104, at 100-01 100-01 (discussing how how appointments to the Court fulfilled fulfilled President President Reagan's Reagan's and President Bush's campaign campaign promises to be tougher on criminals); criminals); Strauss & Sunstein, supra note 177, (When the President has criticized & Sunstein, supra 177, at 1506 (When criticized the Court, "the "the President's appointments commitments."); see also Elhauge, appointments can be be counted on to reflect reflect his own commitments."); Elhauge, supra note 182, appointments); Mark Silsupra 182, at 81-83 (discussing role role of interest groups in in judicial appointments); verstein, People the Senate and and the Court: Court The Democratization of the Judicial Confirmation verstein, The People. Democratization o/the Judicial Confirmation System, 99 CONST. Co mzNTARY 41 (1992) (1992) (the title of which System. CoNSf. CoMMENTARY which says it all); Sager, supra supra note 28, 28, at at 931 (suggesting (suggesting that judges are aa part of the 'society society that surrounds them). 406. In Constitutional ConstitutionalDialogues, Dialogues; Louis Fisher discusses the view view of private organizations, which see litigation as simply another FISHER, become involved. FIsHER, another "political "political process" process" in which to become supra note 108, at 15-24. supra 407. The doctrine stare decisis is in tension with this notion, although the doctrine doctrine supposdoctrine of stare edly has less weight in constitutional cases eg., Harmelin v. Michicases for precisely this reason. See, e.g., Michigan, 111 (1991) (stating that "stare "stare decisis decisis is less rigid in its application 111 S. Ct. 2680, 2686 (1991) application to constitutional precedents"). In their joint opinion announcing the Supreme Court's decision in Planned Casey, however, Justices O'Connor, Souter, and Kennedy Planned Parenthood Parenthood v. Cosey, Kennedy spelled out at length a "reliance" "reliance" model of stare decisis that could be read as chilling this transformative process. 112 S. S. Ct. 2791, 2791, 2808-09 2808-09 (1992). (1992). On the other hand, the joint opinion may well restrain constitutional law quickly. transform constitutional attempts by new appointees appointees to transform 408. In the context extraordinary capaccontext of another another point Cover Cover puts it best, referring to "the extraordinary membership of the Supreme Supreme Court to transform not only the decisional decisional law ity of small shifts in membership . .. ." supra of that Court, but also the strategic significance of the entire entire federal judiciary judiciary •... " Cover, supra "transformative" power of judicial appointments, see note 399, 399, at 58. 58. For a good critique of the "transformative" see AcKERMAN, supra ACKERMAN, supra note 14, at 52-54. constitutional interpretation interpretation thus diverges diverges from Bruce 409. My conception of the process of constitutional "dualist" description of democracy. In Ackerman's Ackerman's view the Court's job is to upAckerman's "dualist" "ordinary politics" "higher lawmaking." lawmaking." politics" unless a course of action runs afoul of "higher hold the work of "ordinary extraordinary Higher lawmaking lawmaking represents represents decisions made by the people people during moments moments of extraordinary


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intricate, involved, robust process. process. Yet the description description serves serves its purpurintricate, pose, primarily because readers know the process so well. This propose, because readers the process well. cess of of interpreting interpreting the the Constitution is interactive. interactive. It It is dialogic. dialogic. cess Courts playa play a prominent role, but theirs theirs is is assuredly not not the the only only Courts voice 410 dialogue.41o in the dialogue. in

Example: The Dialogue DialogueAbout Abortion Abortion B. An Example: Thus far far my my account account has has been somewhat abstract. The following Thus discussion gives gives content to to the concept through a dialogic tour of one discussion of the the most most controversial controversial issues facing facing the judiciary and the people of today, the issue of abortion.411 abortion. 41 1 consensus. These These periods periods may may be be embodied embodied in in explicit constitutional constitutional amendments, amendments, but but courts consensus. also can can discern discern other other periods periods of of extraordinary extraordinary change. For Ackerman, there have been been only also three such such periods. periods. See See ACKERMAN, AcKERMAN, supra supranote 14, 14, at 58. 58. As my description of dialogue makes makes three clear, II believe dialogue consistently consistently is is transformative transformative of political life. clear, believe dialogue Ackerman presents presents aa railroad railroad metaphor democracy, with sitting in the back, always of democracy, with judges sitting Ackerman metaphor of synthesizing the in order order to to discern discern and interpret supra note interpret higher law. See ACKERMAN, ACKERMAN, supra synthesizing the past past in 14, at at 98-99. 98-99. Steve Steve Winter Winter rightfully rightfully critiques critiques Ackerman's 14, Ackerman's metaphor as "too quaint and European for for aa modem, mobile America." America." Winter Winter suggests that judges are not simply synthesizing pean modem, mobile synthesizing our past: are "always "always on on the the freeway freeway and and always always looking forward, backward, our past: judges judges are backward, and side-toside at all the other drivers." drivers." Winter, Winter, supra at 1522; 1522; see also also Winter, Judicial JudicialReview. Review, side at all the other supra note 24, at supra note note 40, 40, at at 685 685 (arguing (arguing that interpretation can come from bottom (people) up (to court)); supra that interpretation court»; Frank Law's Republic, Republic, 97 YALE L.J. L.. 1493, (1988) (criticizing Ackerman's Frank I. I. Michelman, Michelman, Law~ 1493, 1521-24 1521-24 (1988) Ackerman's characterization of of the authoritarian); Sager, supra supranote 28, at 931 (criticizing Ackerman's the law law as as authoritarian); (criticizing Ackerman's characterization dualist regime). While agree that that Ackerman's severely the Ackerman's thesis does not mirror reality, in that it limits too severely While II agree transformative role role of of dialogue, Winter's own conception of dialogue dialogue, Winter's dialogue also seems to me too onetransformative sided. In In Winter's synthesize popular views and then hand down law. But Winsided. Winter's dialogue dialogue judges judges synthesize ter ter takes takes inadequate inadequate account account of the converse. People also listen to whatjudges judges say and change their Thus, people not only their political political views. views. Thus, people not only influence influence courts, courts, but courts courts influence influence people. people. I envision interpretation as sion constitutional constitutional interpretation as a highly highly interactive interactive dialogue, dialogue, in which both sides are influential. Michelman, supra, times: See Michelman, supra, at at 1523. 1523. Ackerman Ackerman seems to appreciate appreciate this at times: tial. See By principles raised raised by the New Deal, the Old By dramatizing dramatizing the the fundamental fundamental constitutional constitutional principles Court constitutional idenCourt contributed contributed to to aa more more focused, focused, and democratic, democratic, transformation transformation of constitutional tity otherwise have American people the American people tity than than might might otherwise have occurred. occurred. By By holding holding up a mirror to the that re-presented the fundamental that re-presented the fundamental principles of the middle republic, republic, the Old Court made itit easier, not harder, of the easier, not harder, for for the the citizenry citizenry of the 1930's 1930's to to clarify clarify what what they they found wanting wanting in in the the traditional traditional structure structure .... ••.. AcKaERMAN, ACKERMAN, supra supra note note 14, 14, at 104. 410. central thesis in Louis This is is the the central thesis in Louis Fisher's Fisher's Constitutional Constitutional Dialoguea Dialogues. Fisher Fisher develops develops a 410. This theory of "coordinate "coordinate construction" construction" in in which which "the "the executive executive and and legislative legislative branches branches necessarily necessarily theory of share with the share with the judiciary judiciary aa major major role role in in interpreting interpreting the the Constitution." Constitution." Fisher Fisher makes the the point point wonderfully, wonderfully, by by offering offering telling telling examples. examples. FISHER, FISHER, supra supra note note 108, 108, at at 231; see see also Fisher, supra supra note 349. I differ note 349. I differ with with -- or or move move aa step step past past -- Fisher Fisher in in that that I believe believe that all all branches branches facilitate facilitate aa dialogue dialogue in which which the the people people give content content to to the constitutional constitutional text. text. 411. 411. As As II embark embark on on this this discussion, discussion, one one piece piece of of work work on on the role role of of the the Supreme Supreme Court Court deserves deserves special special mention, mention, perhaps perhaps because because I struggled struggled for a long time time to to understand understand exactly exactly what what II could could or or should should say say about about it. it. That That piece piece of of work work isis Professor Professor Gerald Gerald Rosenberg's Rosenberg's intriguing intriguing study study of of the the Supreme Supreme Court's Court's role role in in social social reform, reform, The The Hollow Hollow Hope Hope. RoSENBERo, ROSENBERG, supra supra note note 147. 147. In In The The Hollow Hollow Hope Hope Rosenberg Rosenberg ultimately ultimately concludes concludes that that courts courts are are not not very very good good engines engines of social reform, of social reform, in in large large part part because because of of the the constraints constraints courts courts face face in in implementing implementing a social social reform reform agenda. agenda. See See id id. at at 336-43. 336-43. II have have little little quarrel quarrel with with this this proposition proposition in in general general terms. As As II argue argue throughout, throughout, courts courts tend tend to to achieve achieve results results when when there there isis majoritarian majoritarian support support for what what they they decide, decide, and and courts courts tend tend to to decide decide in in ways ways for for which which there there is is majoritarian majoritarian support. support. Thus, II


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4 12 is Wade 412 Roe v.v. Wade one of the most criticized criticized decisions decisions of the 413 From the perspective countermajoritarian perspective of the countermajoritarian Supreme Court. Commentators regularly level the charge difficulty, this makes sense. Commentators "law. '4 14 that Roe represents represents judicial judicial fiat rather rather than constitutional "law."414 Roe is, for these commentators, commentators, the epitome epitome of the problem problem with an Constitution unconstrained judiciary: without sound basis in the Constitution judges have have interfered interfered with the majority's right to regulate regulate abortion. The story that must be told about Roe, to be consistent with the countermajoritarian countermajoritarian difficulty, is highly contestable, however. The first premise premise of the countermajoritarian countermajoritarian difficulty insists that state laws regulating abortion represented majority will. Roe, which struck down those laws, thus ostensibly thwarted majority will. Polling data suggest just the opposite, however. A majority, or at least a strong plurality, of the population has supported Roe since since the time of deciam little surprised by the data Rosenberg Rosenberg offers offers consistently consistently showing that major major social reform See eg., id at 241 ("I will highlight e.g., id. highlight efforts already were underway underway by the time the Court acted. See, the simple point that the women's women's movement was moving full blast before before Court decisions on behalf of women's rights came to be."). of seriously understates understates the impact of Nonetheless, I1 am left with the sense that Rosenberg seriously courts, perhaps perhaps because because his focus is on a slightly different different question question than mine. With regard regard to the Supreme Court's decision in Roe v. Wade, 410 U.S. U.S. 113 113 (1973), (1973), for example, Rosenberg generally concludes concludes that progress toward abortion rights was steady before Roe, and that the Roe successful in aiding supra decision was at best partially successful aiding the availability of abortion. ROSENBERG, ROSENBERG, supra to note 147, at 178-80. But Rosenberg Rosenberg also observes observes that, "in the years after 1973, opposition to strengthened and grew." Id at 182. 182. Rosenberg's abortion strengthened grew." ld. Rosenberg's conclusion with regard to abortion abortion and the role of the Court to Court seems seems quite ambivalent; ambivalent; any change that occurred is attributed attributed to Id. at 201. 201. outside factors, such as political support, that enabled enabled the Court to proceed. ld. change," id 1, or "social "social reform," reform," id. id at 5, and Because he is looking primarily primarily for "social change," id. at 1, because he looks in areas in which which the liberal agenda agenda is said to have have been furthered furthered by by Court action, Rosenberg Rosenberg tends to miss the impact of Court decisions that are reactive or, as 1I would say, dialogic. As my own telling of the abortion story will suggest, much of Roe's impact, at least least antichoice forces. This mobilization had an enormous initially, was to mobilize the antichoice enormous impact, yet yet Rosenberg (although acknowledging this reaction) counts it little in his assessment of the role of the Court. I1 believe this impact impact is significant in terms of the societal dialogue. By the same token, Rosenberg particular effort effort to assessing the extent to which which Rosenberg does not lend particular judicial anti-"reform" "change" decisions had a positive impact. Yet, as I suggest anti-"reform" or "change" suggest elsewhere, elsewhere, 186 it could be, for example, that the Supreme Supreme Court's opinion in Bowers v. Hardwick, 478 U.S. 186 (1986), had the impact of further mobilizing (1986), mobilizing the gay community community toward broader broader societal acceptance of their arguments. arguments. See infra note 475. Court read to suggest that the only impact I see of Supreme Court Finally, none of this should be read reaction." Despite, or perhaps reading around, Rosenberg's evidence, decisions is "negative "negative reaction." evidence, I crystalizing developing developing public nonetheless believe believe judicial decisions decisions can have the effect of crystalizing opinion. (1973). 412. 410 U.S. U.S. 113 (1973). CLASH OF ABSOLUTES (1990). H. TRIBE, ABORTION: ABORTION: THE CLASH ABsOLUTES 79 (1990). 413. See LAURENCE H. BoRK, supra 414. See, See, eg., e.g., BORK, supra note 238: pro-abortion, has ever thought of an argument In the years since 1973, 1973, no one, however pro-abortion, argument that that even remotely begins to justify Roe v. Wade as a constitutional constitutional decision.... decision.•.. There There is no room for argument argument about the conclusion conclusion that the decision was the assumption of illegitimate illegitimate judicial judicial power and a usurpation of the democratic authority of the American people. Id. at 115-16; see also also John Hart Crying Wolf: Wolf: AA Comment on Roe v. Wade, ld. Hart Ely, The Wages of Crying 82-YALE (1973) ("[Roe] is bad because constitutional law, or rather rather be82'YALE L.J. 920, 947 (1973) because it is bad constitutional cause it is not constitutional law and gives almost almost no sense sense of an obligation to try to be.").


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sion. 4 15 By the same token, the countermajoritarian sion.41S countermajoritarian difficulty must must 4 16 Roe is view Roe as the end of the story. thwarting mastory.416 depicted as thwarting jority will in some some way thatprecluded precluded further popular popular action. In reality, however, Roe is at best a beginning.417 beginning.4 17 Relating the story of the abortion debate emphasizes emphasizes the dialogic nature of judicial review. Actually, the modem story of abortion abortion rights begins well before 4 18 Roe. 418 Just as Roe has proved a catalyst for the abortion debate, Roe 4199 decision.41 the decision. preceded the also was a product of political political activity that preceded Why Why abortion abortion rights moved to center center stage in the early 1970s is difficult to say, beyond the broad influence influence of changing societal views on sexuality sexuality and personal privacy. What is evident evident is that Roe was the product of a push social had for change that become difficult, by 1973, product 420 42o for the Court to ignore. As early as 1959 the American American Law Insti42 1 tute had recommended recommended more permissive 1967 laws,421 and in 1967 permissive abortion abortion laws, 422 ALI position. Association endorsed the American Medical Association the American the ALI position.422 Some states had liberalized liberalized their abortion policies in the years between between 423 1960 and Roe. 423 liberalization was fought largely by The battle for liberalization women's women's groups, including the newly formed National Association for for Repeal Organization National Organization Repeal of Abortion Laws (NARAL) and the National 4 24 for Women (NOW). (NOW).424 415. See supra supra text accompanying accompanying notes 147-49. constitutional dialogue in sophisticated sophisticated and sensible sensible 416. Even Robert Robert Burt, who who talks of constitutional terms, sees Roe as final and thus condemns the decision in the context of his preference for for egalitarian supra note 189, egalitarian interpretation. BURT, BURT, supra 189, at 357-59. 357-59. I believe Burt wrongly emphasizes the finality of Roe and thus overlooks overlooks the complicated, complicated, dialogic dialogic story told in in this section. section. 417. In addition to the following discussion, discussion, see TusHNET, TuSHNET, supra supra note 162, at 153, and 821, both Carter, supra supra note 388, at 821, both of whom whom see Roe as a beginning, of sorts, of a dialogue. 418. See generally generally TRIBE, TRiNE, supra supra note 413, at 35-51 35-51 (tracing the history of abortion in America 1973). America from the 1950s to 1973). 419. See, e.g., eg., id; Continues, 4 BERKELEY WO419. See, id.; Nancy Stearns, Stearns, Roe v. Wade: Wade: Our Struggle Continues, BERKELEY WoMEN'S L.J. 1, 5-6 (1988-89) (1988-89) ("We must never forget that Roe v. Wade did not just 'happen.' 'happen.' That MEN'S decision came only after the short but intense political political and legal efforts of women across the country."). country."). 420. Robert persuasive force that the Roe Court should not have Robert Burt argues with some persuasive have addressed have utilized "the passive virtues" virtues" to permit the societal societal dialogue addressed the merits but should have to continue unimpeded. See BURT, supra supra note 189, at 348-51. 348-51. 421. supra note 413, TRIBE, supra 413, at 36. The 1959 proposal would have amended amended the American American 421. TRIBE, Law Law Institute's Model Penal Code to allow abortion where: where: (1) "continuation "continuation of the pregnancy 'would gravely impair the the physical or mental the mother' "; (2) the "child was likely to 'would gravely impair physical or mental health health of of the was likely be born with 'grave physical pregnancy resulted physical or mental mental defects' defects' "; or (3) (3) "the pregnancy resulted from rape or or incest." Id. 422. Id Id. at 38. 423. between 1967 1967 and 1973. 1973. See TRIBE, supra supra 423. Nineteen Nineteen states reformed their abortion laws between note id. at 42. Four note 413, at 49. Most of these reforms resembled resembled the ALI's 1957 proposal. proposal. See id. states, however, left the abortion decision completely completely to the pregnant pregnant woman, at least during the id. at 51. first 20 weeks of pregnancy. See id. 424. Although Although women's groups had not initially been been major participants in the movement to criminal abortion laws, by 1973 they "almost universally repeal" of of universally supported supported complete complete repeal" reform criminal such laws. TRIBE, TRIBE, supra supra note 413, at 43.




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Quite sensibly, the battle for liberalization was fought in courts as well as legislatures. For organized. organized groups with limited limited. resources concerned with societal change, courts are a logical place to turn. As cerned. compared with trying to force change in the legislative arena, courts compared. are relatively accessible. Judicial actions require require far fewer resources than legislative challenges. Inertia is more easily overcome overcome in the courts. Thus, a number of court actions had been brought before 425 results.425 1973, with varying results. 1973, The Supreme Supreme Court's own decisions had in fact been partly respondecision sible for the forces that brought Roe to the Court. The 1966 decision 426 permitting married. Griswold v. Connecticut,426 married couples to use conv. Connecticut, in Griswold traceptives, fueled. the hope that the Court would extend the traceptives, certainly certainly fueled privacy right to the abortion context. Following Griswold, however, Following Griswold, 427 the Court ducked ducked. the abortion question about as often as it could427 before deciding to hear and address the issue in Roe. The decision in Roe, Roe, legalizing legalizing abortion under certain conditions, served as a catalyst catalyst for political and legislative action. Although Although in certainly signaled signaled a new era in hardly the beginning beginning of the debate, Roe certainly thinking about abortion. In fact, one might say the Court began a process of requiring requiringthe citizenry to think about abortion. With legislative inertia on the side of those who cared. cared about and opposed abortion, and with the pro prochoice choice movement movement still relatively relatively nascent, the number of Americans Americans that had given serious thought question thought to the question before Roe is unclear. Almost twenty years later, one reasonably can can guess that most Americans have a view on the question and have given given 428 the question some thought. 428 425. See Steams, Stearns, supra supra note 419, 419, at 4-5 (discussing pre-Roe legal challenges to state abortion New Jersey, Connecticut, Connecticut, Pennlaws brought by large groups of women plaintiffs in New York, New sylvania, Massachusetts, Tennessee, Tennessee, and Rhode Rhode Island); Abele v. Markle, 342 F. Supp. 800 (D. Conn. 1972) (holding that Connecticut's Connecticut's abortion law violated women's rights to liberty and and privacy), vacated, 410 410 U.S. U.S. 951 (1973). (1973). privacy), vacated, U.S. 479 (1965). (1965). 426. 381 U.S. Supreme Court 'decision *decision concerning 427. Roe was the second second Supreme concerning abortion. BURT, BURT, supra supra note 189, at 344. The first was United States v. Vuitch, 402 U.S. U.S. 62 (1971), (1971), in which which the Court upheld a statute prohibiting conclusion that statutes statutes should always be construed prohibiting abortions based based on its conclusion to uphold their constitutionality constitutionality and thereby avoided consideration consideration of the abortion issue. 428. There is some support support for this in in the increasing number of single-issue single-issue voters on abortion, a fairly rare phenomenon 15 years ago. See Bush'sNo-No on Abortion, rare phenomenon Abortion, TIME, Nov. 6, 1989, at 30 (citing a TIME/CNN TimE/CNN Poll finding that 54% "abortion is one of 54% of adult women believe that "abortion of the most important issues facing the country today"). Justice statement during his Justice Thomas' Thomas' statement confirmation confirmation hearings hearings that he had not given the matter serious serious thought or reached a conclusion conclusion Conservative Vote on the subject is thus somewhat somewhat remarkable. remarkable. See Tony Mauro, Thomas Lets Conservative Talking, U U.S.A. Do the Talking, . S.A. TODAY, TODAY, June 30, 1992, 1992, at 2A. One suspects that Thomas Thomas recognized that that any candidate candidate with a public opinion on the question was unlikely unlikely to be confirmed, confirmed, especially if if the opinion stood against abortion rights. See A Blank Slate, Slate, TIME, Aug. Aug. 6, 1990, at 16 (citing a TIME/CNN TIME/CNN poll showing that 59% of Americans "oppose "oppose a Supreme Court nominee who would would vote to overturn overturn Roe v. Wade").


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Roe most immediately antiabortion immediately served to motivate the antiabortion 429 429 forces. Fueled by a Vatican Vatican statement that Roe was morally monstrous, the Catholic Church largely was behind early efforts to restrict 430 Although the movement quickly secuRoe.430 abortion rights despite despite Roe. larized, abortion nonetheless remained a primary issue of the religious right. In addition, Roe likely was one of a number of decisions that gave rise to increasing increasing political political movement movement in the 1980s by the evangel431 ical right. 431 After Roe the focus of the dialogue shifted to state legislatures. Supreme Court decisions that provoke and permit a Unlike many Supreme lower level of defiant activism, such as continuing to pray pray in public school classrooms despite pronouncements forbidding the conduct, pronouncements 432 challenging Roe effectively effectively called called for a legislative legislative response. 432 Roe was challenging followed by an onslaught of legislation aimed at abortion abortion rights, running the gamut from open challenge to optimistic ning the gamut from open challenge to optimistic subterfuge. Some states enacted restrictive laws that could not possibly possibly have been Roe. Others erected roadblocks roadblocks to thought constitutional constitutional in light of Roe. abortion by restricting its availability availability under under differing differing circumstances circumstances or or 433 of the requirements that raised the cost by imposing requirements cost of the procedure. procedure.433 429. See TRIBE, supra ("The main consequence Roe... supra note 413, at 16 16 (''The consequence of the decision in Roe • •• was right-to-life movement ...."). "). to galvanize galvanize a right-ta-life movement ••.. 430. See id. iL at 139, 143, "[I]t is widely believed that the Catholic 143, 145-47. 145-47. "[1]t Catholic Church either either organizations during the years immediately following supported or quietly ran most right-to-life right-ta-life organizations following I at 145-46. In 1975, the National Conference of Catholic Roe." Id. National Conference Catholic Bishops unveiled a "compre"compreactivities." Id. Id. at 146. hensive pastoral pastoral plan for pro-life pra-life political political activities." id.at 147 ("By 1976 431. See id. 1976 opposition to abortion was on its way to becoming becoming a main vehicle for the rise in political influence influence of Protestant Protestant fundamentalism fundamentalism in the United States."). id. 432. Actually, some defiant defiant action occurred in the form of abortion clinic bombings. See id. "bombed or set fire to at least at 172 (noting that between 1977 1977 and and 1990, antiabortion extremists "bombed least 117 clinics and threatened threatened 250 others"). Obstetricians & 433. See, eg., e.g., Thornburgh Thornburgh v. American Ameris:an College of Obstetricians & Gynecologists, 476 U.S. 747 (1986) requirements as well as requirerequire(1986) (invalidating extreme reporting reporting and informational requirements ment that physicians physicians exercise due care to preserve the life of a viable fetus when possible possible at no partby Parenthood v. Casey. Casey, 112 S. additional risk to the woman's health), overruled overruled in part by Planned Planned Parenthood (1992); Planned Ct. 2791 (1992); Planned Parenthood Parenthood Assn. v. Ashcroft, 462 U.S. 476 (1983) (1983) (upholding Missouri requirements requirements (i) that two physicians physicians be present present at all postviability postviability abortions and (ii) that a pathologist perform a tissue sample analysis in all abortions); abortions); City of Akron Akron v. Akron Ctr. for Reproductive Health, Inc., (1983) (invalidating city requirements requirements that (i) Reproductive Health. Inc., 462 U.S. 416 (1983) (i) all post parental confirst-term abortions be performed in hospitals, (ii) all minors under age 15 obtain parental sent, (iii) physicians provide information decision, and information designed to influence influence a woman's woman's informed decision. (iv) women wait for a fixed period between (iv) between seeking and obtaining obtaining an abortion), overruled overruled in part part (1992); H.L. v. Matheson. Matheson, 450 U.S. 398 (1981) by Planned Parenthood Parenthood v. Casey, 112 112 S. Ct. 2791 (1992); (1981) (upholding a Utah parental notification law); Harris v. McRae, McRae, 448 U.S. 297 (1980) (1980) (upholding denial of Medicaid Baird, 443 Medicaid funds even for some medically necessary necessary abortions); abortions); Bellotti v. Baird. U.S. 622 (1979) cannot require require a minor to obtain parenparen(1979) (plurality opinion) opinion) (holding that a state cannot tal consent before abortion without providing a bypass procedure); procedure); Colautti v. before obtaining an abortion Franklin, 439 U.S. 379 (1979) Franklin. (1979) (invalidating (invalidating a Pennsylvania Pennsylvania law imposing imposing a special special duty of care on physicians to preserve might preserve fetal life when they had sufficient reason to believe that the fetus might be viable); Maher v. Roe, 432 U.S. 464 (1977) (1977) (upholding Connecticut regulation regulation preventing preventing use of state Danforth, 428 state Medicaid Medicaid funding for nontherapeutic nontherapeutic abortions); Planned Parenthood v. Danforth.




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Legislative Legislative response response to Roe Roe also also occurred occurred at at the the national level. Roe has spawned spawned numerous numerous proposed proposed constitutional constitutional amendments amendments directed directed 434 at Congress at overturning overturning it. it.434 Congress also also has considered considered a host host of of legislative legislative proposals, proposals, ranging ranging from attempts attempts to to restrict the the jurisdiction jurisdiction of of the the fed4 36 43S5 to curtailment eral eral courts COurts43 curtailment of federal federal funding funding for for abortion. abortion.436 The The decision decision in in Roe Roe -- not just the the judgment judgment but the Court's opinin shaping the challenges ion -- was a vital force was vital shaping challenges mounted mounted by by abortion abortion opponents. opponents. Prolife forces forces tailored their responses to language language in the Roe opinion, as as well as to the bases bases for the the Roe decision. The Court's Court's suggestions in Roe regarding regarding permissible permissible areas for state state regulation regulation led led suggestions to complicated complicated regulatory regulatory schemes schemes quite obviously obviously designed designed to limit abortions. abortions. Language Language in the Roe decision indicating indicating that the the ConstituConstitureferences to "life" "life" did not include the unborn fetus led led to efforts tion's references 437 Roe therefore to define legislative terms. 437 define life life in constitutional constitutional or legislative generated legislative enactment-federal enactment-federal generated a highly highly interactive interactive process process of legislative court response, tailoring the areas areas in which which states states could regulate the abortion process. For example, parental parental consent consent laws early on provided one area in which which the Court was willing to sanction sanction state regula438 A decision-state law evolved, with tion. tion.438 cycle of state law-court decision-state legislatures legislatures ultimately ultimately passing laws laws the Court approved. This process can can hardly hardly be described described exclusively exclusively as the Court speaking and legislaeducated along the way, tures listening. The Court undoubtedly undoubtedly was was educated as to both the types of regulation regulation that might occur occur and the intensity of of popular popular opinion. opinion. abortion Indeed, popular opinion opinion plays an important role in the abortion somewhat obdialogue, though the discussion of legislative action somewhat U.S. (1976) (invalidating U.S. 52 (1976) (invalidating a Missouri Missouri law that required women to obtain the written consent of of their spouses before having having first-term abortions and prohibited saline amniocentesis amniocentesis after the first trimester, but upholding upholding state requirements requirements that (i) women certify in writing that their consent to (ii) detailed an abortion is informed and voluntary and (ii) detailed records of all abortions abortions be kept). See supra note 147, at 176-77; 176-77; Albert M. Pearson generally ROSENBERG, generally ROSENBERG, supra Pearson & & Paul M. Kurtz, The HARv. J.L. & Abortion Controversy: Controversy: A Abortion A Study in Law and Politics, Politics, 88 HARv. & PUB. POLY. 427 (1985). (1985). 434. See Pearson & & Kurtz, supra supra note note 433, at 446-55 446-55 (discussing the numerous attempts attempts to In 1982, the Hatch constitutional amendment). overturn Roe by constitutional amendment). In Hatch Amendment, which would have overturned Roe's constitutional protection of abortion rights and allowed the states or Congress Republican Senate by a vote of 50 to 49. to determine determine the legality of abortion, was defeated defeated in the Republican supra note 413, at 162-65. TRIBE, supra supra note 433, at 456-59 435. See Pearson & & Kurtz, supra 456-59 (discussing congressional attempts to abortion restrict lower federal court jurisdiction and Supreme Court appellate jurisdiction jurisdiction over abortion issues). (1980) (upholding (upholding the Hyde Amendment, which 436. See Harris v. McRae, 448 U.S. 297 (1980) for incest, and danger to the mother's life the use of federal funds to pay for limited to cases of rape, incest, abortions). example, would have defined 437. The Human Life Bill, for example. defined human life as beginning at con& Kurtz, supra supra note 433, ception. See Pearson & 433, at 460-63. 460-63. U.S. 476 (1983) (1983) (upholding aa paeg., Planned Parenthood Assn. v. Ashcroft, 462 U.S. 438. See, See, e.g., rental consent requirement).


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scures it. it. Public opinion opinion consistently consistently has provided provided more support support scures for judicial action liberalizing abortion laws refor laws than for legislation re4 39 But, stricting those rights.439 interestingly, public opinion also also tends tends But, interestingly, stricting 440 coincidentally, the the to support parental consent laws. 440 Perhaps not coincidentally, Court was was more more sympathetic to to parental parental notification notification and and consent even Court 44 1 at the height height of of the hegemony hegemony of of Roe. Roe.441 For all the talk of of For countermajoritarian courts, the Supreme Court may well well have have voiced countermajoritarian when it it decided Roe. Roe. the predominant view when Roe also served to draw countless interested groups into the debate about abortion, informing informing and shaping the debate. Organized Organized religion obviously long has been concerned concerned with abortion. The Roe Court's obviously opinion acknowledged and referred to this. Over time religious groups increasingly became active not only in public debate but also in filing amicus briefs before the Court in abortion cases. Likewise with the medical profession. The Court consistently has referred to and relied evidence in shaping abortion rules. This, in turn, has led upon medical evidence the medical profession to speak on the issue and assert its influence the medical influence over the debate. While Roe spurred a great deal of activity, the decision also had a activity. 442 While Roe energized those chilling effect on some political activity.442 opposed to to abortion, abortion, the decision simultaneously simultaneously slowed the activity of opposed of those who favor abortion rights assuring them that the right right was those who favor abortion rights by by assllfin:g them that 439. The public has generally supported 148. The public 439. The public has generally supported the decision in Roe. See supra supra note 148. also disfavors that would restrict the availability GALLUP, would drastically drastica1Iy restrict availability of abortions. See GALLUP, also disfavors laws laws that supra supra note note 155, ISS, at at 45 45 (showing (showing that, that, in 1990 1990 only 42% 42% favored a proposed Idaho Idaho law that would have restricted the availability abortions to cases of rape, incest, fetal deformity, and have restricted the availability of of abortions and danger to the life the mother, GALLUP, JR., the life of of the mother, while while 52% 52% opposed opposed the the law); GEORGE GEORGE GALLUP, JR., THE THE GALLUP GALLUP POLL: POLL: PUBLIC OPINION at 165 PUBUC OPINION 1989, 1989, at 165 (1990) (1990) (showing (showing that in 1989 1989 36% favored and 59% 59% opposed opposed passing laws and regulations that would would make make it difficult for women's clinics clinics that perform perform aborpassing laws and regulations that tions to continue continue to operate). However, However, considerable considerable public public support support exists exists for less less drastic restrictions on on abortion. abortion. See id. Id. at 1989 (1) at 169-70 169-70 (showing (showing that that in in 1989 (1) 54% 54% favored favored and 43% 43% opposed opposed laws laws forbidding forbidding abortions abortions in public to save save the the life life of of the mother; mother; (2) (2) 52% 52% favored favored and 41% 41% public hospitals hospitals except except when when necessary necessary to opposed opposed laws laws requiring requiring that that women women who are are five months pregnant pregnant take take a test test to determine determine if the fetus fetus might might survive survive outside outside the the womb womb before before having an an abortion; abortion; and and (3) (3) 67% 67% favored favored and and 29% 29% opposed opposed laws laws requiring requiring that that women women under under eighteen eighteen years of age age obtain parental parental consent before before having an abortion). abortion). 440. note 439, 440. See See GALLUP, GALLUP, supra supra note 439, at 165 (showing (showing that in in 1989, 1989, 67% 67% favored favored and and 29% 29% opposed opposed laws laws requiring requiring that that women women under under 18 18 years years of of age age obtain obtain parental parental consent consent before before having having an abortion). abortion). 441. Baird, 441. See See Ashcroft Ashcroft, 462 462 U.S. U.S. 476 476 (upholding (upholding parental parental consent consent requirement); requirement); Bellotti Bellotti v. Baird, 443 443 U.S. U.S. 622, 622, 643 643 (1979) (1979) (plurality (plurality opinion) opinion) (approving (approving parental parental notice notice so long long as as the the state state proprovides vides aa judicial judicial bypass bypass procedure). procedure). 442. that dialogue dialogue can can be both both beneficial beneficial and harmful. harmful. Ann Ann 442. Thus, Thus, my my friends friends remind remind me me that Althouse Althouse chided chided me me concerning concerning my my description description of of the the abortion abortion controversy controversy because because the the Court, Court, while while spurring spurring some some political political activity, activity, chilled chilled other other activity. activity. See See also also infra infra text text accompanying accompanying note For aa related related view, view, see see Spann, Spann, supra supra note note 20, 20, arguing arguing that that the the Court's Court's supposed supposed affinity affinity note 443. 443. For for for aiding aiding minorities, minorities, and and decisions decisions such such as as Brown Brown v.v. Board Board of ofEducation, Education, may may actually actually chill chill minority minority political political activity, activity, which which in in the the long long run run might might be more more fruitful.




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443 As protected.443 As history history demonstrated, demonstrated, hasty hasty regrouping regrouping was was required required protected.

state legislatures legislatures as as the reactivate the the abortion abortion rights energy energy in state to reactivate Supreme Court Court ceded ceded more more and and more more regulatory regulatory authority authority over over aboraborSupreme the states states during during the 1980s. 1980s. tion to the Roe and and its progeny progeny have have had an an enormous enormous impact impact in in Nonetheless, Roe Nonetheless, polls suggest motivating the the public public on on the the issue issue of of abortion. Although Although polls suggest motivating much of of the the public public for some some time time did not place place abortion abortion rights that much 4 " those the political political agenda, agenda,444 those who who cared cared have have managed managed near the top top of the near their voice voice with with political political candidates. candidates. As As antiabortion antiabortion activity activity to find their 445 445 rose in in fervor, from increased increased bombings bombings of abortion abortion clinics clinics to more rose vigorous political political activity on the right, the issue began to take take on on vigorous greater importance importance in in elective elective politics." politics.4466 The number number' of single-issue single-issue greater 447 Candidates President Candidates for President voters against against abortion abortion rights expanded.447 voters they did so by by promising and and apaphad to respond to these voices, and they pointing Supreme Court Justices, and federal federal judges, judges, who who were were purpointing 4488 Eventually portedly far more hostile hostile to abortion abortion rights. rightS.44 Eventually Roe portedly First Supreme reached a critical moment the Supreme Court. came expresin reached conservative members of the dissatisfaction from new, conservative sions of dissatisfaction 450 Roe 9 More new Justices 449 Court.44 Justices then joined them.450 was suddenly in serious serious danger. 45 ' tells The climate climate surrounding the Court's decision decision in Webster 451 tells, dramatic parts of the story regarding regarding political political debate one of the most dramatic arguments in and abortion rights. In April of 1989, on the eve of oral arguments capitol in favor Webster. favor Webster, some 400,000 people marched on the nation's c~pitol Roe, frus443. Thus, Robert Burt criticizes the Court for favoring one side of the debate in Roe, supra note 189, at 348. trating even discussion. See BURT, BURT, supra 444. See TRIBE, supra supra note 413, at 150 (following the 1976 presidential presidential election, "[vioters "[v]oters asked to rank the importance importance of fifteen issues ranked abortion fifteenth"). "bombed or id at 172 (noting that, between 1977 and 1990, antiabortion 445. See id. antiabortion extremists "bombed 117 clinics and threatened 250 others"). set fire to at least 117 finding Poll finding TIME-CNN Poll 30 (citing a TIME-CNN supra note 428, at 30 on Abortion, Abortion, supra 446. See Bush's Bush's No-No on 446. See that 54% "one of the most important issues facing the country today"). abortion "one 54% consider abortion 447. See Battle Over TimE, July 17, 1989, at 63 (citing a Abortion, TIME, Over Abortion, The Battle See Margaret Carlson, The that to abortion that July 1989 poll by Yankelovich Shulman finding that 24% are so opposed to Yankelovich Clancy Shulman of the candidate's views regardless of support a candidate who favored abortion regardless they would never support they on on other other issues). Court and three Supreme Court federal bench and of the federal 448. half of appointed over half Reagan appointed 448. President Reagan 17. supra note 413, at 17. Justices. TRIBE, supra Justices. TRIBE, Inc., 462 U.S. 416, v. Akron Center for Reproductive Health, Inc., 449. 449. See, See, e.g., City of Akron v. framework)... analytic framework) of Roe's Roe's analytic (questioning soundness of 452-61 J., dissenting) (questioning (1983) (O'Connor, J., 452-61 (1983) of Justice Sandra 450. at 17-20 17-20 (noting that the appointments of 413, at supra note 413, TRIBE, supra 450. See TRIBE, 1987 Anthony Kennedy in 1987 Day in 1986, and Justice Anthony Antonin Scalia in 1981, Justice Antonin in 1981, Day O'Connor O'Connor in of protection of constitutional protection supported the constitutional had previously previously supported reduced that had of Justices Justices that the number number of reduced the four). rights to to four). abortion rights 490 (1989). (1989). 492 U.S. U.S. 490 Servs., 492 451. Reproductive Health Servs., Webster-v. Reproductive 451. Webster-v.


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452 of abortion abortion rights. 452 The march represented aa tremendous mobilizaof The tion of pro prochoice forces that had been been spurred spurred to movement by the the choice forces tion 4 53 Webster 453 changing tenor of judicial decisions. itself was momentous. changing judicial decisions. Webster 454 The Bush Bush administration administration asked the the Court to to overrule Roe. Roe.454 The Seventy455 455 seven other other groups participated in in the case case as as amici. The Webster Webster seven The Court declined to to overrule overrule Roe,456 Roe,4 56 but but it did did loosen the fetters on anCourt 457 In Webster, tiabortion state legislatures. 457 In Webster, Justice Scalia commented tiabortion 458 Court.458 the COurt. to influence influence the designed to activity political the on specifically specifically on political activity designed Webster spurred spurred the the prochoice movement just as Roe had emboldemboldWebster 459 After Webster, 459 ened the antiabortion movement. Webster, NOW and ened NARAL each reported over 50,000 new members,460 members, 460 and NARAL NARAL 4 61 raised over over aa million million dollars in a single month. 461 raised Abortion rights advocates vowed vowed to carry the fight wherever they had to and and apparently vocates scored some early victories, "knocking off" political candidates scored some early "knocking off" that 462 opposed abortion. 462 Meanwhile, the number of voters who declared themselves "single-issue" "single-issue" on the proabortion proabortion rights side of the debate themselves dramatically. 463 increased dramatically.463 increased Abortion quickly became became one of the central issues in political de464 Roe.464 challenging Roe. laws directly directly challenging enacted laws legislatures enacted state legislatures Some state bate. Some bate. Some state courts located the right to abortion in state constituSome tions. 465 The Republican Republican Party, long antiabortion, toned down its tions.465

452. See Ethan Bronner, Throngs Rally D.C to Keep Abortion Legal, 452. See Ethan Bronner, Throngs Rally in D.C Legal, BOSTON GLOBE, Apr. 19, 1989, at 1. 453. See 453. See iaL id. 454. Kathryn Kathryn Kolbert, v. Reproductive 454. Kolbert, Webster Webster v. Reproductive Health Health Services: Services: Reproductive Reproductive Freedom Freedom Hanging 11 WoMEN's Rirs. L. REP. Hanging By By a a Thread, Thread, 11 WOMEN'S RTS. REp. 153, 155 (1989) (1989) (noting that the Attorney General filed amicus brief brief urging urging the Webster case to overrule General filed an an amicus the Court Court to use the Webster overrule Roe). 455. Id. at 153. 153. 456. See Webster Webster, 492 U.S. U.S. at 521. 521. ('There is no doubt that our holding today 457. See 492 U.S. U.S. at 520-21 (''There today will allow some some governmental of abortion abortion that would have been prohibited prohibited under the language of of governmental regulation of [prior] [prior] cases."). cases."). 458. See See, eg., e.g., 492 492 U.S. U.S. at at 535 (Scalia, (Scalia, J., J., concurring). 459. 459. See See Margaret Margaret Carlson, Carlson, Can Pro-Choicers Pro-Choicers Prevail?, Prevail?, TIME, TIME, Aug. 14, 1989, 1989, at at 28. 28. 460. Id. 460.Id. 461. 461. Id. 462. Robin Toner, Divisive Abortion Politics Politics Bring Bring Iowa Iowa Democrats' Primary Primary to to aa Boil, Boil, 462. See See Robin N.Y. N.Y. TIMES, TIMES, May May 28, 28, 1990, 1990, at at Al Al (discussing (discussing post-Webster post-Webster elections elections where where proabortion proabortion rights rights candidates candidates defeated defeated those those who who opposed opposed abortion abortion rights). 463. 463. See See Carlson, Carlson, supra supra note note 447, 447, at at 63 (citing aa July July 1989 1989 poll by by Yankelovich Yankelovich Clancy Clancy ShulShul-man -man finding finding that that 32% 32% would would never never vote vote for for aa candidate candidate who who supported supported restricting restricting a woman's woman's right to abortion). abortion). 464. 464. See See Frank Frank H. H. Easterbrook, Easterbrook, Presidential Presidential Review, Review, 40 40 CASE CASE W. W. REs. RES. L. REv. REv. 905, 905, 912 912 (1990). (1990). 465. 465. See, See, eg., e.g., Planned Planned Parenthood Parenthood League League of ofMass. Mass. v. v. Operation Operation Rescue, Rescue, 550 550 N.E.2d N.E.2d 1361, 1361, 1365 1365 (Mass. (Mass. 1990); 1990); Doe Doe v. v. Director Director of of Dept. Dept. of of Social Social Servs., Servs., 468 468 N.W.2d N.W.2d 862, 862, 868-69 868·69 (Mich. (Mich. App. App. 1991); 1991); Davis Davis v. v. Davis, Davis, 842 842 S.W.2d S.W.2d 588 588 (Tenn. (Tenn. 1992). 1992).




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6 466 Candirhetoric, finding finding room room under under its its "big "big tent" tent" for many many voices. voices.46 Candirhetoric, dates could could clearly clearly rise rise or or fall on on the abortion abortion issue. dates In In the face face of all this this came came the the Supreme Supreme Court's Court's dramatic dramatic decision decision 4 67 Planned Parenthood Parenthood v.v. Casey. Casey.467 In In Casey a splintered splintered last term term in in Planned last Court upheld upheld the the basic basic right right in in Roe while while modifying modifying the the Roe frameframeCourt work substantially. substantially. The The Court Court held held that, although although a woman woman has the work right to choose abortion abortion until until the fetus is viable, the the states states may may enact enact substantially affecting affecting that that choice, choice, including including requiring requiring informalaws substantially persuade her not to provided to the woman woman in an attempt attempt to persuade tion to be provided Not surprisingly, surprisingly, Casey followed followed news news media media rechoose abortion." abortion. 4688 Not choose ports showing showing a growing public consensus consensus on abortion: abortion: Americans Americans increasingly unlargely support choice choice in in the first trimester trimester but grow increasingly largely 469 One comfortable with with abortion as the fetus matures.469 One can can only specspeccomfortable shaped public public opinion opinion or whether whether public public opinion opinion ulate whether Roe shaped ulate shaped judicial decisions. decisions. Similarly, one one can can only only speculate speculate on on has shaped abortion debate would be absent judicial participation. participation. where the abortion Speculation Speculation is somewhat pointless, however, because the Court's .role in American American politics generally debate in particular particular is generally and in this debate been a vital, but by Throughout the debate debate the Court has so pervasive. Throughout means dispositive, dispositive, participant. What seems apparent, however, is no means that the story of the abortion rights debate does not support the premdifficulty. 470 Rather, that story demoncountermajoritarian difficulty.470 ises of the countermajoritarian

Contortions. NEWSWEEK, Mar. 5, 1990, at 18 ("Today the Abortion Contortions, 466. See Eleanor Clift, Abortion Atwater [GOP] party platform continues to oppose oppose abortion .•.. .... But GOP party Chairman Lee Atwater views."). By 1992 the pendulum had recently said the GOP is 'a big tent' with room for different views.''). swung again: the Republican Party adopted an inflexible antiabortion plank. See Myron S. NEWSDAY, Aug. 21, 1992, at 38. in the Delegation, Waldman, Disenchantment in Delegation. NEWSDAY, Waldman, Disenchantment (1992). 467. 112 S. Ct. 2791 (1992). Ct at 2818. 468. 112 S. Ct. 469. supra note 447, at 63. 469. See Carlson, supra is that of dialogue is the concept of one specific example example to illustrate the 470. The danger danger of using one 470. be any any doubt, there be dialogic. Lest there skeptics might charge that this particular example is uniquely dialogic. terms, the in dialogic terms, dialogue is everywhere. Once attuned to looking looking at judicial review in Once one is is attuned phenomenon experience this phenomenon prevalence of dialogue becomes apparent. Indeed, I regularly experience through the eyes eyes of my students. II have written about extremely common in the fashabout dialogue in other contexts. Dialogue is extremely remediation 173. The process of remediation ioning of jurisdictional doctrines. See supra note 173. See Friedman, Friedman,supra 156. supra note 156. well. See See Friedman, supra tights is dialogic as well. constitutional rights violations of constitutional involving violations constitutional areas involving constitutional in other areas The The dialogic dialogic process I have described is common in over(1972), overrights. A 408 U.S. U.S. 238 (1972), v. Georgia, Georgia, 408 Furman v. death penalty. Furman A good good example example is the death fragextremely fragCourt was was extremely the Furman Furman Court turned the death penalties of many states. Although the suggested that in discretion and suggested sentencer discretion problem with with broad sentencer highlighted the the problem Furmanhighlighted mented, Furman 408 Eg., 408 states must limit jury discretion. E.g., penalty states death penalty constitutionally valid death order to to have aa constitutionally which varying laws. Some, which states enacted varying U.S. at 249 response states 249 (Douglas, (Douglas, J., concurring). In response Roberts v. v. LouisiSee, e.g., eg., Roberts invalidated. See, penalties, were subsequently invalidated. imposed mandatory death death penalties, sentencer discretion severely limited sentencer statutes that that severely same token, token, statutes By the the same 428 U.S. U.S. 325 325 (1976). By ana, ana, 428 into ran into to be be weighed weighed also ran circumstances to specific aggravating and mitigating circumstances enumerating specific by enumerating mitinot limit limit the miticould not decided that that legislatures could subsequently decided Court subsequently trouble the Supreme Supreme Court trouble when the v. See, e.g., e.g., Lockett Lockett v. penalty. See, to avoid avoid the the death death penalty. could offer offer to defendants could gating circumstances defendants gating circumstances


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strates aa vibrant public dialogue over the issue. Courts have had an important voice in this dialogue, particularly particularly in facilitating it, but theirs is not the final or only voice. C.

Courts The Role of Courts

I now focus more closely on what courts actually do in our constiof tutional system. Courts play two roles in the dialogue: the role of 71 facilitator.4471 or facilitator. shaper or of shaper speaker and the role of The role of speaker speaker requires less exploration, as this role closely parallels how courts are viewed under the traditional traditional formulation of the countermajoritarian countermajoritarian difficulty. Under the traditional traditional view, courts enforcer: courts declare declare rights, but but are seen as speaker, but also as enforcer: those declarations are expected to take effect. As my discussions of of judicial finality and of the abortion controversy controversy have demonstrated, this grossly overstates overstates the case. In some instances the courts declare a right, accompanied accompanied by a clear and simple mandate, and the mandate mandate is is carried carried out. But in other other cases the judicial decision is filtered and watered down, evaded, and avoided; avoided; or, over time, the public voice engenders engenders a judicial judicial change. Far less obvious is the role of courts as facilitators and shapers of of constitutional debate. Facilitation is to some extent a natural constitutional Facilitation part of the declaration of constitutional constitutional meaning; as the foregoing description foregoing description because pronouncements pronouncements spark activsuggests, the process is dynamic because ity. But some facilitation appears more deliberate. The courts' role in in the dialogue over the meaning of the Constitution is highly interactive. the dialogue over the meaning Constitution interactive. Ohio, sentencing Ohio, 438 438 U.S. U.s. 586 (1978). (1978). This This development development in in turn led to a real tension tension between sentencing discretion and unlimited mitigation. See Scott E. Sundby, The Lockett Paradox Reconciling Lockett Paradox: discretion and unlimited mitigation. Guided Unguided Mitigation Capital Sentencing Guided Discretion Discretion and Unguided Mitigation in Capital Sentencing, 38 UCLA UCLA L. REv. 1147 (1991). Eventually the Supreme Court also loosened (1991). Eventually loosened the rules regarding regarding aggravating circumstances, upholding considered aggrastances, upholding death death penalties penalties in instances instances in which the the jury jury or court had considered vating that were were beyond the purview of the statute or were were invalid. invalid. See, eg., e.g., vating circumstances circumstances that Barclay Florida, 463 U.S. discretion Barclay v. v. Florida, U.S. 939 (1983). (1983). This tightening tightening and loosening loosening of sentencing sentencing discretion essence of Furman -- also was reflected -- the essence of Furman reflected in the Court's Court's hasty turnabout turnabout on the use of of victim victim impact impact information information in in capital capital sentencing. sentencing. See supra supra note 364. Finally, an undercurrent undercurrent of of Furman about racial Furman was was aa concern concern about racial discrimination discrimination in sentencing, as well as disparate disparate treatment treatment based upon See, eg., Furman, 408 U.S. e.g., Furman. U.S. at 366 (Marshall, J., concurring). concurring). In based upon economic economic status. status. See, McCleskey Kemp, 481 McCleskey v. v. Kemp, 481 U.S. U.S. 279 279 (1987), (1987), when faced with evidence evidence of such discrimination, discrimination, however, however, the Court Court nonetheless nonetheless upheld upheld the Georgia Georgia death death penalty. Dialogue obvious level Dialogue at at one one obvious level is is occurring occurring here. here. As states test out new statutes and the the Court evaluates evaluates them, aa natural natural evolution evolution unfolds. But the evolution evolution mirrors mirrors what is occurring occurring in in society at large. large. As noted earlier, Furman Furman was decided at aa time when when society's society's approval of of the society at death its low point. See, eg., e.g., James James Patterson Patterson & & Peter Peter Kim, Kim, AA Strong Show of of death penalty penalty was was near near its point. See, Support for Capital TIMES, Aug. 7, 1991, 1991, at G1; alsosupra Supportfor Capital Punishment, Punishment. SEATTLE SEATILE TIMES, G 1; see also supra note 162. If If one one matches matches up up Supreme Supreme Court decisions decisions with the the tide tide of of public public opinion, opinion, the dialogic dialogic give give and and take is obvious. obvious. 471. 471. See See Gerhardt, Gerhardt, supra supra note note 104, 104, at 84 84 ("ITlhe ("[T]he Court is is a critical critical interpreter interpreter of of and and player player in historical .... n). ). historical events events .•••




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Courts act act as as go-betweens go-betweens in in the the dialogue, dialogue, synthesizing synthesizing the the views views of of Courts society and and then then offering offering the the synthesis synthesis to society society for for further further discusdiscussociety 72 Courts serve serve as as society's society's tennis tennis partner, partner, always always volleying volleying the the sion.4472 Courts sion. 473 ball back. back.473 This This interactive interactive process process points points to certain certain roles roles for courts. courts. ball society's views views on on constitutional constitutional meaning. meaning. Given Given Courts synthesize society's the spacious spacious constitution constitution and the the views views of of the the many many constituencies, constituencies, aa the collection of constitutional constitutional interpretations interpretations often exists. exists. Courts Courts collect collect collection 474 these views and consolidate consolidate them, striving striving for a common common norm. 474 these This distillation distillation resembles resembles a legislative legislative debate debate begun begun with with a multiplicmultiplicThis choice. a binary as presented of viewpoints viewpoints and and ultimately ultimately presented ity of ity focus debate. As courts courts synthesize, synthesize, they inevitably inevitably Courts also focus Courts The decichoose. Courts Courts accept one interpretation interpretation and reject others. The and immediate. immediate. Thus, a debate that that sion is not final, but it is sharp and might have proceeded proceeded without without clear clear direction direction now has focus. might Similarly, court decisions may act act as a catalyst, catalyst. causing causing society to Similarly, otherwise have stood at the top of the debate issues that might not otherwise 472. Professor Paul Paul Brest argues that constitutional constitutional interpretation interpretation ought to shift from what what legislatures and perceives as as the primary primary focus in the courts to legislatures and to the people. See Paul Paul Brest, he perceives Constitutional Citizenship, Citizenship, 34 CLEV. ST. L. REv. 175, 175, 180-81 180-81 (1986). (1986). As this article article makes makes clear, clear, Constitutional currently occurs primarily II generally generally disagree disagree with the premise premise that constitutional constitutional interpretation interpretation currently in courts. interpretation Professor Robin West offers offers an intriguing intriguing rejoinder to Brest. She argues that interpretation perhaps ought ought to, because contemporary contemporary interpretation interpretation primarily primarily occurs primarily in courts, and perhaps Authoritaadhering to an authoritarian authoritarian view of the Constitution. Robin L. West, The Authoritais amoral, adhering proceeds to (1988). West proceeds 531, 532 (1988). MiAMI L. REv. 531, rian Impulse in Constitutional Constitutional Law, 42 U. MIAMI rian concern themselves themselves with constitutional constitutional interpretation if the argue that the people ought only to concern determining what we are . interpretive interpretive act is seen as normative, rather than simply an exercise in determining authoritarian strain the decisions in compelled or permitted to do. West cites as examples of the authoritarian compelled U.S. 113 (1973). See West, Bowers v. Hardwick, 478 U.S. U.S. 140 (1986), (1986), and Roe v. Wade, 410 U.S. supra, 532-33. supra, at 532-33. significant and noteWest's argument is worthy of serious thought. II differ with her in one significant and Roe parade believe that decisions such as Bowers and parade around in worthy respect, however. II believe language but that even their authors recognize the moral dimension of the deciauthoritarian language terms. address moral questions in legalistic terms. we address the interesting question is why we sions. Thus, Thus, the sions. Carter discusses discusses a articles, Carter 473. II disagree In a series of articles, Professor Carter. In disagree in this respect with Professor Stenote 15; 15; Stesupra note Carter, supra dialogic unlike that II describe here. See Carter, review not unlike dialogic form of judicial review L. REv. REV. Meaning, 66 B.U. L. of ConstitutionalMeaning, phen L. Carter, The Right Creationo/Constitutional Right Questions Questionsin the Creation side dialogue, each side 71 (1986); supra note 388. Carter describes aa relatively two-sided dialogue, Carter, supra (1986); Carter, to effect change. far dialogue dialogue will go to limits on how far yammering at one another, but with serious limits Court can guide policy choices but rarely See, Carter, supra supranote 15, at 851 (arguing that the Court See, e.g., eg., Carter, note 388, 388, supranote Carter, supra circumvented by the legislature); Carter, initiates them; the usually can can be circumvented the Court usually for nearly always win - at least for will nearly possess sufficient fortitude, will at 855 ("[T]he if they possess ("mTlhe Justices, Justices, if accommoand acco=omutual influence and the near see aa constant constant process of mutual the other other hand, see on the near term."). I, on of the vision of tug-of-war. My vision of compromise as aa tug-of-war. dation, as much much aa product of dation, with ultimate results as than Carter's. Carter's. and intertwined intertwined than interactive, and role of of courts is far more cooperative, interactive, L. 63 S. S. CAL. CAL. L. 474. See Adjudication, 63 ConstitutionalAdjudication, of Constitutional Dimension 0/ The Political PoliticalDimension Hill, The See Alfred Hill, 71 (1971), (1971), the Reed, 404 404 U.S. 71 Reed v. v. Reed, such as as Reed REv. cases such (arguing that that in cases (1990) (arguing 1237, 1251 1251 (1990) REv. 1237, where aa an area where catching up in an "essentially catching is "essentially Court countermajoritarian; it is be called called countermajoritarian; Court cannot be 154 162, at 154 supra note 162, cf TuSHNET, TUSHNET, supra won wide recognition"); cf. changed already won changed consensus has already and community and sometimes, co=unity where, sometimes, ("Certainly are places where, courts -- are appellate courts courts -- even appellate ("Certainly courts shared into being."). being."). be brought brought into can be shared values can


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4 75 Sometimes agenda.47s decisions address aa topic that that is is timely agenda. Sometimes judicial decisions and pressing. But But judicial decisions also can come out of relative oband scurity, provoking provoking intense intense debate debate over an an issue issue over which debate had had scurity, only occurred at a lower lower level of of interest. interest. Judicial decisions can can upset upset only status quo, requiring requiring societal societal response and and thus fostering fostering societal societal the status 476 consideration.476 shape the debate over constitutional meaning. JuFurther, courts shape the interpretation of of dicial decisions essentially are policy papers on the collects and organizes thoughts. the Constitution. Opinion writing collects This organization tends to give body to loosely held views. andbody to the dialogue. Courts can take an Courts also give voice and unusual or uncredited position and move it to the center. Courts can unusual interrupt societal patterns of thought, presenting wholly new or inadeinterrupt quately considered views, whether the views are welcome or not. quately Moreover, by deciding to confront an issue themselves or by deferMoreover, ring to other decisionmakers, courts can prod prod other institutions to speak. Thus, the Supreme Court often attributes intent to Congress even in in instances instances where where Congress may not have had an intent, placing even 477 In effect, at times the Court asks other the ball ball in in Congress' Congress' court. COurt.477 the actors to speak. Finally, and in an entirely separate and tend moderate and -Finally, separate vein, courts moderate the debate, largely by protecting the institutions that participate the debate, participate in the dialogue. dialogue. Vital Vital debate over constitutional constitutional meaning depends upon an open and vigorous political process. The Framers' Framers' system imagines open and vigorous voices from every level of government, government, filtered through various various sysevery tems decisions maintain (or disrupt) baltems of of representation. representation. Judicial Judicial decisions ance separation of powers and federalism, and -- to of separation ance in in the the system system of 475. 475. Frank Frank Michelman, Michelman, for for example, example, criticizes criticizes the Court's decision in Bowers v. Hardwick, Hardwick, 478 from aa republican 478 U.S. U.S. 186 186 (1986), (1986), from republican perspective. Michelman argues that Court decisions must like gay of must bring bring groups groups like gay people people into into "full "full and and effective effective participation participation in the various various arenas arenas of public 1533. public life." life." Michelman, Michelman, supra supra note 409, at 1533. My this conclusion conclusion is that, although I am am sympathetic sympathetic to Michelman's Michelman's valuevalueMy difficulty difficulty with with this laden from aa dialogic at least might have laden outcome, outcome, from dialogic standpoint standpoint the decision in Bowers v. Hardwick at been more transformative been more transformative than than aa decision decision in in favor favor of of Hardwick. Hardwick. The Court's decision, by keeping an active active group group on on the the fringe, fringe, may may have have served served as as aa catalyst catalyst for more more dynamic dynamic civic action. action. ing an For For aa fuller fuller description description of of the the notion notion of "Court "Court as as catalyst," catalyst," albeit albeit a view its author generally generally rejects, see ROSENBERG, supra supra note 147, 147, at at 25-26. rejects, see ROSENBERG, 476. 476. See See Gerhardt, Gerhardt, supra supra note 104, 104, at at 86 (suggesting (suggesting that "the "the Court's Court's decisions decisions inform inform the choices choices or or agendas agendas of of the the other other branches"). branches"). As As Louis Louis Fisher Fisher points points out, out, the the Court Court can can invite invite response, response, thus thus fostering fostering dialogue. dialogue. See See FISHER, FISHER, supra supra note note 108, 108, at at 247. 247. II have have identified identified the Court's in Bivens Bivens v. v. Six six Unknown Unknown Named Named Agents, 403 U.S. U.S. 388 388 (1971), (1971), as as just just such such an an Court's decision decision in invitation. See Friedman, Friedman, supra supra note note 156, 156, at at 770. 770. invitation. See 477. 477. See See BOBBrrT, BOBBlTI, supra supra note note 5, 5, at at 192-93 192-93 (noting (noting that that courts courts often often offer offer a "cue" "cue" to to other other branches); branches); William William N. N. Eskridge, Eskridge, Jr. Jr. & & Philip Philip P. P. Frickey, Frickey, Quasi-Constitutional Quasi-ConstitutionalLaw: Law: Clear ClearStateStatement as Constitutional Constitutional Lawmaking Lawmaking. 45 45 VAND. VAND. L. L. REv. REv. 593 593 (1992) (1992) (arguing (arguing that that the the Court Court mentRules Rules as uses see also also uses statutory statutory construction construction rules rules to to force force Congress Congress to to consider consider constitutional constitutional issues); issues); see Friedman, Friedman, supra supra note note 156, 156, at 751-52 751-52 (discussing (discussing Bivens line line of of cases cases as such such aa cue).




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"clear[] the channels of political political change."478 change." 478 quote John Hart Hart Ely - "clear[] All this is apparent apparent in the debate over abortion. The Supreme Supreme Court has spoken time and again on the nature of the abortion right. But by the same token, the Court galvanized galvanized public opinion through a 479 479 And the Court in turn was genuinely lengthy process process of dialogue. exhibit influenced by that dialogue. This discussion discussion is not intended to exhibit hamper or chill a Panglossian view of courts. As indicated, courts can hamper descriptive matter the diadialogue as well as provoke it.480 But as a descriptive logic role of courts cannot be ignored. Approaching the question question in countermajoritarian diffidialogic terms, rather than in terms of the countermajoritarian culty, should should inspire a discussion of how to make the dialogue more open, more vibrant, and more effective. D. Dialogue and Constraint Constraint D. Dialogue and dialogic role presented presented here differs significantly The dialogic significantly from normative theories of judicial judicial review. Other Other theories prescribe what judges should do and measure the work of judges against the theory. The dialogic view simply accepts what judges do. The dialogic view thus is judges to subject to inevitable inevitable challenge challenge on the grounds that it permits judges "do anything." anything." Commentators Commentators might "do might rightly rightly inquire as to whether whether limitations exist on what courts properly can do pursuant to dialogue. limitations pursuant I have been asked whether, under a dialogic theory, courts would be Germany. 48 1 Underlying constrained to accept a situation like Nazi Germany.481 concerns about constraint such questions are quite reasonable reasonable concerns constraint and legitimacy. We perceive courts as more remote than legislative perceive legislative and executive officials. Moreover, the subject with which courts deal - our understandably arouses jealousies. That is why rights and liberties - understandably judicial action action and to academics struggle to define the parameters of judicial ensure that judges will stay within some bounds. The dialogue dialogue described described here does constrain judges. Rather Rather than 4 2 by judges, ignored by judges,482 relying on a normative normative theory easily and often ignored inherent and systemic: judges however, the constraint constraint in dialogue dialogue is inherent 478. ELY, supranote 59, at 158 ("[T]o ("mo the extent that ELY, supra supra note 5, at 105; 105; see also Seidman, Seidman, supra 'defects' in the political political process, there are nonmajoritarian nonmajoritarian 'defects' process, an independent independent judiciary judiciary can actually play a pro-democratic pro-democratic role by eliminating playa eliminating the defects."). Commentary Commentary is mixed, of course, as to whether the Supreme Supreme Court's intervention to protect protect politics always is is well advised. See John Court's Quest for Politics, 1 CONST. (1984). for Fair Fair Politics, CoNST. COMMENTARY CoMMENTARY 203 (1984). Moeller, The Supreme Court's 479. supra notes 429-31 and accompanying 479. See supra accompanying text. supra notes 442-43 and accompanying 480. See supra accompanying text. 481. "[i]fjudicial 481. As Professor Carter puts it, "[i]f judicial review review really proceeds in this manner - so the Holocaust?" Carter, supra standard question runs - then what could a court do to stop the Holocaust?" supra note 473, at 90. 482. In addition, as Philip Bobbitt Bobbitt observes, adoption adoption of a normative theory would "lead "lead to Constitution." BOBBITr, BoBBrrr, supra supra note 5, at 238. convention on the Constitution." the superimposition of a single convention


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48 3 government in which they operate.483 are constrained by the system of government This section section at least preliminarily preliminarily describes how internal constraints operate upon the judiciary. One obvious constraining force is found in the sources of judicial decisionmaking. As I argued argued earlier, the bases for judicial judicial decisionmaking society. 484 The clearest clearest making are firmly grounded in the norms of society.484 example is the practice in many cases of "polling" state legislative practice "polling" recognized practice in order to determine determine whether whether a right is generally recognized 4855 But this is not the constitutional status. and should be accorded accorded constitutional statuS.48 only example. Many references references to sources supporting constitutional constitutional 4 86 486 people. the of values the to appeal an are judgments judgments appeal values of the people. Whether reference reference to judicial decisions reveals reveals what judges actually rely upon in deciding cases is irrelevant. Judges Judges may rely upon "majoritarian"), whim, or or their gut instinct (which I would argue is "majoritarian"), what they had for breakfast. What is important important is that judges find it necessary to, and can, support their conclusions with sources that appear to reflect the sentiment of the people. Thus, one properly might might question the entire entire notion that courts enforce enforce norms contrary contrary to popupeople," Because judges are chosen from and live among "the people," lar will. Because 87 their decisions naturally naturally reflect popular popular will to some degree. 4487 The following discussion of systemic constraints explains how this system discussion systemic system continues to reflect popular will even as judges are appointed to supposedly insular, life-tenured life-tenured positions. In his excellent excellent article "Ambivalence "Ambivalence and Accountability," Accountability," Professor Louis Michael Seidman Seidman examines examines the paradox paradox of judicial review in in majoritarian system. Seidman's task, like many before a majoritarian before him, is to reconciling our adherence adherence to judicial review with search for a way of reconciling 483. In discussing discussing Alexander Alexander Bickel's philosophy, Professor Professor Kronman Kronman calls this constraint constraint external, as opposed internaltheory external, opposed to an internal theory such as a normative normative theory of rights. See Kronman, supranote 12, at 1579-80. Chemerisky, on the other hand, uses the notions of "intersupra 1579-80. Professor Professor Chemerinsky, nal" and "external" "external" constraint constraint quite differently. Chemerinsky defines defines "internal" "internal" constraints as "norms feel obligated to follow." "norms of proper Court behavior behavior that the Justices fecI follow." Chemerinsky, supra supra note 73, 1251-53. Examples 73, at 1251-53. Examples of these are are the need need to adhere to or distinguish precedents and and the need to write reasoned reasoned decisions. Id. ld. at 1251-52. 1251-52. "External" "External" constraints "arise "arise from the interaction id. at 1252, including the need other branches branches of government," government," id. need for for interaction of the Court with other enforcement Presidents appoint new Justices. judicial orders and the control exercised exercised when when Presidents enforcement of judicial Id. at 1252-53; see also Chemerinsky, supra ld. supra note 3, at 101 101 & & n.236. 484. See supra supra text accompanying notes supra note 108, at 13-14; notes 61-114; see also FISHER, FIsHER, supra MARSHALL, supra note 235, at 31-36 (discussing evidence of Supreme Court reliance on public MARsHALL, supra public opinion ("Mluch of what the supra note 40, at 1920-21 1920-21 ("[M]uch opinion in deciding cases); Winter, Upside/Down, supra necessarily employs conceptions that already Court does necessarily employs mainstream mainstream conceptions already preclude preclude or impair minority concerns concerns .•.• .... "). But see id. id. at 1925-26 1925-26 ("fDJominant ("[Djominant conceptions conceptions are not the same thing as majority decisions."). decisions."). accompanying text; Winter, Judicial 485. See supra supra notes notes 98-101 98-101 and accompanying Judicial Review, supra supra note 40. 486. See supra supra text accompanying accompanying notes 61-139. 61-139. 487. See supra supra text accompanying notes 61-139. 61-139.




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our devotion to majoritarian majoritarian government. Unlike Unlike most others before him, however, Seidman Seidman concludes concludes "[t]he "[t]he search for a normative justifijustifinonaccountability is is... ... bound to be both fruitless cation for judicial nonaccountability '4 88 and pointless. pointless."488 Seidman's reasoning is as important important as his conclusion. After After tracing the contradiction contradiction inherent in a system system where judicial review stands side by side with majoritarianism, majoritarianism, and concluding concluding that the contradiccontradiction cannot cannot be reconciled, Seidman argues that the attempt to reconcile the two is misguided. Seidman relies on an analogy to a patient patient who must undergo undergo a life-saving life-saving amputation without anesthesia. The patient precommits precommits to the operation, instructing instructing the physician to ignore any plea during the operation to terminate the procedure. Then, doctor during the procedure, the patient (now in great pain) begs the doctor to stop, yet when the doctor does so the patient patient later asks why the 489 "What are we to doctor disregarded disregarded the earlier earlier order.489 "What make of this 490 sort of intertemporal conflict?" Seidman asks, drawing intertemporal conflict?"490 Seidman dra~g the obvious precommitment to judicial analogy between his story and the precommitment judicial re4911 Seidman concludes concludes that we are deeply ambivalent ambivalent about judiview. 49 cial review: the process of judicial review represents the body politic's taking its medicine. Thus, even the fact that judicial decisions will not always reflect popular choices is in a sense a popular choice. We are, "continually intellectually, going in two directions at once, thereby "continually ' 492 community."492 redefin[ing] ourselves ourselves and our community. There is much to commend in Seidman's frank and certain recognition of our inability to legitimize judicial review by reconciling it with what we call majoritarianism. Seidman's question about interIntertemporal temporal conflict speaks volumes about our system. Intertemporal conflict is not merely accidental; it is in a sense the built-in mechanism accidental; mechanism simultaneously constraining constraining the systhat makes our system run while simultaneously tem's actors. Another analogy reflects the day-to-day day-to-day system of American con1599. 488. Seidman, supra supra note 59, at 1599. 489. Id. ALdat 1588, 1590. 490. Id. at 1591. conflict." 491. Other commentators commentators have have produced significant work on this "intertemporal "intertemporal conflict." See Ackerman, supra note 3, 1076-79. Ackerman, supra 3, at 1045-46; Amar, supra supra note 201, at 1076-79. supra note 59, at 1600; see also also Welch, supra supra note 68. 492. Seidman, supra 68. Welch examines into low-level scrutiny, in an attempt to stances in which legislation is struck down by courts applying low-level determine the extent to which community morality - standing alone - can justify justify legislation. legislation. Welch concludes that the due process arena entertains conflicts in community community morality that are governmental moral played out in constitutional constitutional cases. Manuscript at 88-90. On the one hand, governmental of choices - such as bans on nude dancing - are legitimate. On the other hand, equally a part of "liberty... our community morality, is the concept concept that "liberty ••• limits the scope of government" government." Id Id. at at 89. Constitutional Constitutional adjudication adjudication thus is the process of reconciling reconciling these conflicting moralities. moralities.


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stitutionalism. Picture an oscilloscope, with three sine waves running across its screen, all at varying frequencies. Label one line the Executive, one the Congress, and one the Judiciary. The peaks and troughs represent deviations deviations from the views of each branch's branch's constituency. Thus, each branch moves in and out of sync with its electorate electorate or or constituency. To pick the simplest example, the Executive may well well be at its peak when newly elected to a first term; by the end of the congruence may be substantially substantially reduced. second term the congruence One condition endemic endemic to our system is that the branches rarely will be equally equally in sync with their constituencies at the same time. Rather, the waves run on at different different intervals, perhaps not entirely entirely independent of one another, but not on the same track either. This pattern was not accidental: the Framers Framers designed the system so that the varying terms of senators and representatives representatives would give rise to long-term or short-term short-term views more or less in sync with the will of the 493 people. 493 Like the description description of the dialogue dialogue itself, this description is overprobably would want two waves for the simplified. At the least, one probably legislature, one representing representing the Senate, the other the House House of Representatives. But an accurate accurate picture of American American constitutionalism constitutionalism might require countless more lines: state legislatures, state governors, town councils, school boards, and so forth. The list is long if not endless. An inquiry into what the line representing representing the judiciary jUdiciary would look like and the consequences consequences of the line-drawing exercise line-drawing exercise in general countermajoritarian difficulty igis enlightening. Discussions of the countermajoritarian nore the subtlety subtlety of this system, because the difficulty assumes that the judiciary judiciary is out of sync sync with the majority. The truth of this assumption, however, varies at different times. The times when it is true, esvis-a.-vis the peaks and troughs of the other branches, branches, teach a pecially vis-A-vis 94 system.4494 constitutional system. good deal about the protections protections of our constitutional Considering Considering when the actions of the nonjudicial nonjudicial branches generally generally constituencies provides provides a useful start. At will mirror mirror the views of their constituencies some level this is subject to happenstance; happenstance; the lines will not really be as 493. Mark Tushnet, The Politics Law, in THE POLmcs POLITICS oF Politics of Constitutional Constitutional Law, OF LAW: A PROelection 219, 223-24 (David Kairys ed., 2d ed. 1990) (describing different different election terms and methods offederal of federal branches to foster different constituencies). constituencies). For more on the repremodem syssentative and institutional institutional nature of the branches, including including discussion on how our modern tem differs Framers' intent, see AcKEamAN, supra note 14, ACKERMAN, supra 14, at 67-70. differs from the Framers' supra note 404, at 114 ("Despite this unpredictability, the actions of the 494. See Reynolds, Reynolds, supra pattern of of Supreme Court are not random. Just as there is structure within chaos, so there is pattern sorts within the actions of the Court ••.. .... "). "). GRESSIVE CRITIQUE GRESSIVE CRmQUE


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smooth as sine waves but will be spiked and somewhat chaotic,49S chaotic, 495 and there also may be tremendous tremendous variance variance from issue to issue. Nonetheless, the Framers did have have a specific specific design. The Framers Framers believed believed that each body would represent represent its constituents constituents closest to election time because the representative representative would be most fully fully imbued with the electoelecto96 Public choice theory suggests rate's values following an election.4496 choice just the opposite: immediately immediately prior to an election the representatives representatives 97 will be trying hardest to represent the electorate's electorate's views.4497 either In either case, the sine wave ought to be intersecting intersecting with public opinion opinion around election time. This circumstance elected circumstance suggests two useful points about the elected, branches. First, as I argued earlier with regard to the judiciary, it may institution repbe more instructive to measure the extent to which an institution resents the views of the public, rather rather than the extent to which an individual representative representative mirrors constituents' constituents' views. Government individual Government is representative of majority will at times when the most eleclikely to be representative elective offices offices are up for grabs. Second, and perhaps perhaps more important, just just as the Framers intended, the elective seats are not open at the same elective Framers' concern with faction and over-accountability over-accountability to time. The Framers' the majority led them to construct construct a system in which some branches electorate's most pressing would have longer terms free of the electorate's pressing desires (i.e., the Senate), somewhat difdifSenate), and planned planned to have the branches branches on somewhat 498 498 ferent election cycles. election The next step is to compare the wave representing representing the judiciary judiciary to those of the elected branches. Because federal judges do not stand for 499 the obvious question is whether there election, is any benchmark election,499 analogous to the election cycle for outlining outlining the judicial judicial wave. The likeliest time for judges as individuals to reflect reflect the will of the populace is at the time of appointment. There are a number of reasons populace reasons for this conclusion. First, Presidents select judges judges whose ideologies jdeologies 495. But see Tushnet, supra supra note 493, 493, at 230 ("The rhythm rhythm of politics politics in the Supreme Supreme Court and constitutional government constitutional law is somewhat more sedate than that of politics elsewhere in government "). CONSTrUTION 58 (Richard Maidment 496. See REFLECTIONS REFLEcrIONS ON THE CoNSTITUTION Maidment & & John Zvesper eds., 1989). 1989). FRicKEY,supra 497. See FARBER & & FRICKEY, supra note 28, at 22-23. supra note 493, at 223-25 498. See generally generally Tushnet, supra 493,.at 223-25 (describing how constitutional constitutional structure defeats attempts of majority to gain control control of all branches). As with other structural elements, this construct construct might not have come off precisely as the Framers intended. As Bruce Ackerman Ackerman points out, the Framers Framers did construct the branches branches differently differently both to represent represent different constituencies and to lessen the possibility possibility of factions' capturing government. But notions underlying ACKERMAN, supra underlying their plan have not come quite to fruition. See ACKERMAN, supra note 14, at 67-70. In particular, the House of Representatives Representatives was intended intended to be the nationalistic body, while the Senate Senate was to represent represent parochial parochial interests. Today just the opposite seems true. Id. ld. at 69. 499. U.S. 1. U.S. CONST. CoNST. art. III, § 1.

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5°° resemble their own. 500 Second, this effect is enhanced enhanced to the extent extent that Presidents are elected in part on a platform representing some concern about judicial 501 Third, the confirmation confirmation process is concern judicial ideology.501 an exercise calculated not only to ensure as much as possible that a nominee's values represent mainstream thought thought but also to educate educate the 02 populace.5502 nominee as to the concerns of the populace. To the extent this observation observation is correct (and even to an extent if it considerably more chaotic is not), the judicial judicial wave likely will be considerably chaotic than the waves of the elected elected branches. Professor Professor Mark Mark Tushnet has observed that it takes roughly ten years for one party in charge charge of the 5033 This judicial selection process to shape a judiciary judiciary in its image. 50 alone may be a rare and random event. But the premise underlying the assessment also is unpredictable. unpredictable. Judicial Judicial attrition, unlike elections, does not occur on a fixed schedule. Judges and Justices are ap50 4 differing ages and serve for far differing terms. 504 Congress pointed at differing 50 5 may create judgeships. jUdgeships.50S Any number of factors have an impact on vacancies to work a substanwhether one President President will have enough vacancies tial change change in the federal judiciary. A related point is that the judiciary judiciary is likely to be out of sync with 50 6 the political political branches branches quite often. 506 In part this fluctuation reflects the chaotic nature of the situation where the judicial wave runs alongchaotic nature political branches. But the flux side the more predictable predictable waves of the political number also reflects the time necessary for a President to name a large number Presidents certainly have chosen of 500. Although this has not always been the case, Presidents chosen judges judges of similar philosophy philosophy in recent years. See Ely, supra supra note 28, at 842-54; 842-54; Strauss & & Sunstein, supra supra cf Jeffrey A. Segal & Albert D. Cover, Ideological and the Votes of of note 177, at 1506-07; cf. Ideological Values and U.S. Supreme Court Justices, Justices; 83 AM. Am. POL. Sci. REv. (1989) (measuring recent Justices' u.s. POL. SCI. REv. 557 (1989) Justices' value preferences and voting records). A wealth of literature discusses the extent to which presidential preferences appointees See, eg., e.g., LAURENCE LAURENCE H. TRIBE, GOD SAVE SAVE appointees mirror the ideology ideology of the President. See, THIS HONORABLE HONORA3LE COURT: THE CHOICE OF SUPREME SUPREME CoURT COURT JUSTICES SHAPES OUR THIs CoURT: How How TIm HISTORY (1985); (1985); Ronald D. Rotunda, Predicting HIsTORY Predicting the Views ofSupreme Court Court Nominees, Nominees, TRIAL, Nov. 1990, at 42. 501. & Sunstein, supra note 177, at 1506-07. 1506-07. 501. Strauss & Sunstein, supra 502. See Nina Totenberg, The Confirmation Confirmation Process and the Public Process and Public: To Know or Not to Know, 101 HARv. REV. 1213, 1213 (1988) Know, HARv. L. REv. (1988) (characterizing the current current confirmation process process as the public's "last chance to affect the least accountable branch of government"). For a criticn1 critical of late, see Strauss & Sunstein, supra supra note 177. view of the confirmation process oflate, & Sunstein, 503. TUSHNET, supra 503. TuSHNBT, supra note 493, 493, at 225. 504. Justice Powell was 64 years old when President Nixon appointed Supreme appointed him to the Supreme Court. BOB WoODwARD ARMSTRONG, THE BRETHREN WOODWARD & SCOTT ARMsTRONG, BRETHREN 160 (1979). (1979). In sharp concontrast, Justice Justice White White was only 44 years old when President President Kennedy appointed him to the Court. 4 THE JUSTICES OF THE UNITED COURT 1789-1969, 1789-1969, at 2951 (Leon Friedman UNITED STATES STATES SUPREME CoURT Friedman & & Fred L. Israel eds., 1969). 505. eg., Fifth Circuit Court of Appeals Reorganization Reorganization Act of 1980, Pub. L. No. 96505. See, e.g., 452, 94 Stat. 1994 (amending (1951)) (creating 452, § § 2, 2, 94 Stat. 1994 (amending 28 U.S.C. U.S.C. §§ 41 (1951» (creating the Court of Appeals for the Eleventh Eleventh Circuit). 506. See Reynolds, supra supra note 404, at 114-15 (discussing fluctuation in the judicial system).


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of judges to the bench, matched up against the vicissitudes of ordinary politics. Politics tends to move in cycles; people will favor one approach and then, after a time, favor a change. Just as a President is gaining firm control over the judiciary, the people people are likely to change political direction, leaving the judiciary and the political political branches branches at odds. majoritarian This is precisely the state of affairs that frustrates the majoritarian often countermajoritarian difficulty. Judges often and leads to talk of the countermajoritarian appear to be moving in a separate direction from the political 7 Although this frustrates the majoritarian, 507 branches.50 majoritarian, the system that gives rise to that frustration was no accident. The time of a majoritarian's delight is precisely precisely what the Framers Framers feared most. The majoritarian will be most content when all sine waves are crossing content government - including the judiciary - is their middle point and government most sensitive to the will of the majority. But fear of tyranny of the majority is precisely what caused the Framers Framers to erect our governmengovernmen50 8 tal structures structures in a way that seeks to minimize these instances. 508 The reality is that, despite the different cycling, times of congruence do occur. There are times when when all the branches branches will be highly these are times of great political representative of majority will. Often 'these political 9 But the Framers justifiably were 509 progress, such as the New Deal.50 Framers concerned that if such states of affairs existed for too long people's people's rights would be trampled trampled by zealous majorities. The important important thing Framers' design is that the system does not stand still: the about the Framers' waves always are moving somewhat independently through peaks and troughs. Just as the system will have cycles in which all waves are crossing the middle point, the system also works to ensure that no wave will get get appointment too far out of cycle. The process of election and judicial appointment works to keep the lines somewhat somewhat responsive to one another and within the rough bounds of public opinion. Of course, this process sometimes fails, leading to constitutional constitutional crises. Dred Dred Scott may well well represent a time when the waves were far out of sync; the period of when waves of supra note 20, at 2008-12 of political preferences 507. See Spann, supra 2008-12 (discussing types ofpolitica1 preferences to which which the Supreme Supreme Court will be uniquely responsive). 508. See supra supra notes 189-200 189-200 and accompanying accompanying text. 509. Intriguingly, the sine wave wave analogy analogy may offer some support for Ackerman's notion of of constitutional constitutional moments. Ackerman identifies three periods periods of high lawmaking, two of which which followed, respectively, the Civil War (in part moved moved along by Dred Dred Scott) and the Supreme Court's resistance supra note 14, at 40. If these periods ACKERMAN, supra resistance to the New Deal. See AcKEMAN, represent represent points when when the waves were seriously out of sync, in their wake the period of adjustment may have involved a point in time when all waves waves were in in sync.


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judicial opposition opposition to the New Deal may signal another. But such periods have been mercifully mercifully rare. This tentative thinking suggests a picture of a judiciary judiciary that rarely completely on target with the body politic but is never too far ahead ahead is completely 5 10 or behind. slO The judiciary judiciary can be at times visionary, visionary, and at times reactionary, but never too much of either. When the judiciary slides toward either either extreme a correction correction begins, moving moving the wave back in the other direction. One oft-studied example may be the progress of of expansion of constitutional constitutional rights. In the model of of the Warren Court's expansion judicial judicial behavior behavior that arose from the Warren Warren era, courts are supposed to protect minorities. The judiciary can can pursue this role because because its unpopular relative isolation from ordinary ordinary politics allows it to do unpopular things that the political branches branches cannot. Undoubtedly there is some truth to the model, but the sine wave analogy raises serious doubt doubt about its descriptive accuracy.Sll accuracy. 5 11 The question is whether judges, or or whether the judiciary jUdiciary collectively, really do engage in such conduct, and how 5 12 successfully. 5 12 A description of the Warren era more in keeping keeping with the sine intersecting with popular popular wave analogy views the judicial wave as intersecting substantial pockets of opinion at that moment. There were probably substantial 5 13 The popular support support for the actions taken by the Warren Court. Sl3 members members of that Court hardly were radicals. More likely they tapped into a strong undercurrent of public public sentiment about racial justice justice and 14 Like intertemporal conSeidman's intertemporal rights for the underprivileged.5sl4 "apflict, the sine wave analogy shows how the judiciary jUdiciary can act as an "appeal from John drunk sober. '51 5 The Warren era may have drunk to John sober."sls resulted from a submerged sense of injustice regarding regarding inaction by the political political branches on civil rights. 510. DAHL, ("TIhe views of a majority DAHL, supra supra note 48, at 190 190 ("[T]he majority of the justices of the Supreme Supreme lawmaking majoriCourt are never out of line for very long with the views prevailing among the lawmaking supra note 108, 108, at 12; Sandalow, supra ties of the country."); FISHER, supra supra note 378, at 1039. supranote 20, at 1990-2008 1990-2008 (arguing that courts are institutionally 511. See Spann, supra institutionally incapable of advancing minority interests in the face of majority opposition). 512. This accords with a thought of Robert Cover's: "I "I favor federal courts taking a lead in fail.... our reforming institutions when the other officials fail ..•• At times the federal courts have been our allies in those commitments. convergence of interests commitments. There is every reason reason to believe that such a convergence interests accidental .••. .... (1988), cited "" ROBERT M. COVER ET AL., AL., PROCEDURE 730 (1988), was temporary and accidental Upside/Down, supra in Winter, Upside/Down, supra note 40, at 1890 n.31. n.31. eg., Spann, supra 513. See See, e.g., supra note 20, at 2008-2018 2008-2018 (describing (describing Brown Brown v. Board of Educ., Educ., 347 347 (1954), as a decision that had majority support). U.S. 483 (1954), MARSHALL, supra supra note 235, at 87 (concluding that 61% 514. See MARsHALL, 61% of the Warren Court's decisions were were "majoritarian"). "majoritarian"). 515. Mark Tushnet, Justice MajorityRule, 139 U. PA. L. REv. 1357, SIS. Justice Brennan, Equality, Equality, and Majority (1991); see also Chemerinsky, supra supra note 3, at 83-84 (arguing that emphasis emphasis on majority 1370 (1991); rule gives too much much weight to short-term short-term goals rather than long-term values).




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By the the same same token, token, the the judiciary judiciary rode rode the the wave wave of of the the Warren Warren By Court into a trough trough fairly quickly. Twenty-five Twenty-five years years later later the judicijudiciCourt 516 When ary looks looks completely completely different. different.516 When the next next trough trough and and peak ococary curred is hard hard to isolate. isolate. My My own own suspicion suspicion is is that that the trough trough came curred quickly after after the Warren Warren years, years, that the conservative conservative BurgerBurgerfairly quickly Court itself itselfmirrored mirrored popular popular opinion opinion for only a short time, Rehnquist Court Rehnquist and current very very conservative conservative bench bench rapidly rapidly is falling falling out of of and that the current step with the the mood mood of the country. That That may be why what many exstep pected to be the most conservative conservative Term Term in in a long long while while turned turned out not not pected SO.517 to be S0.517 connection between By now the connection between the sine sine wave analogy analogy and the diaBy of logue should should be clear. The sine waves waves that represent represent the system of logue government the Framers Framers designed designed drive the dialogue. The The judiciary judiciary is government reactionary simply both visionary and reactionary is always somewhat somewhat simply because because it is more political political branches branches - always always inchout of sync with the waves of more out 18 The divergence between popular sentiahead or lagging behind.5518 divergence between ing ahead 519 In this judiciary is what makes the dialogue work.519 ment and the judiciary respect, judicial judicial action may deserve deserve greater credit than the countermajoritarian difficulty accords accords it. Judicial action creates the countermajoritarian difficulty system moves the tension that constitutional interpretation interpretation dynamic system of constitutional 520 along. 520 The sine wave also represents the constraint constraint against a judiciary spinning norcompletely out of step with the majority. Rather than spinning constraint mative theories to constrain judges, we should see that the constraint is internal. Judges Judges are constrained by the political political system that sur52 ' When judges stray too far from the mark, pressures rounds them. 521 appointments and in political rhetoric - to bring build - in judicial appointments 522 The dialogic protection is that the judiciary them back into line. 522 jUdiciary REAGAN AND AND THE SUPREME COURT 52-56 JUSTICE: REAGAN WIrr, A DIFFERENT JUSTICE: 516. See ELDER WrIT, in Rehnquist Court). (1986) (1986) (discussing conservative alliance in than It Appears, Appears, RECORDER, Court Is Harder Harderthan Packingthe Court Sullivan, Packing See, e.g., e-g., Kathleen Sullivan, 517. See, Roe v.v. Wade). Wade). not to reverse Roe Court's surprising decision not Aug. 7, 1992, 1992, at 9 (discussing (discussing the Court's supra note 28, at 916. Cf Sager, Sager, supra 518. Cf. should lead society aggressively. For example, Court should 519. Some criticize the notion that the Court confront and reshape should routinely confront "the judiciary should with the notion that "the Robert Nagel differs with society avoids or agreement agreement with society deference to to or Judicial deference 27, at 23. Judicial society." NAGEL, NAGEL, supra note 27, society." permits acceptance of id, and permits judiciary," id., of aa routinely routinely pugnacious judiciary," "the "the constitutional costs of Id. at at 23-24. 23-24. of the Constitution. Constitution. Id. an interpretation interpretation of practice as as itself an societal practice of the the Supreme Court's at 115 115 ("Politically, ("Politically, the fluidity of supra note 404, at See Reynolds, Reynolds, supra 520. See often pressed that people are often set in in stone stone over time, and that that no coalition is set means that jurisprudence means jurisprudence .... ").). interests .... in order order to to protect their interests to become become involved involved with politics in 457 (1992). (1992). Law, 80 80 GEO. L.J. L.J. 457 and Public PublicLaw, PoliticalTheory Theory and Symposium, Positive PositivePolitical 521. See See Symposium, 521. THE AMERICAN AMERICAN G. McCLOSKEY, McCLosKEY, THE ROBERT G. cite for for this proposition proposition isis ROBERT 522. The classic classic cite 522. has Court has historical instance when the Court to find aa single single historical ("[1It isis hard hard to SUPREME (1960) ("[1]t SUPREME COURT 224 (1960) A. Robert A. wave of public demand."), followed by Robert clear wave stood stood firm firm for very long against aa really clear


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23 or the the people -- always are struggling struggling to achieve achieve convergence. convergence.5523 or The constraint is inherent inherent in in the judicial process rather than external external to it. it. constraint The people will follow judicial decrees so long as the judges seem will follow decrees so long seem The right. When When the judges no longer longer appear appear to be correct, the people people will right. press for for judicial change. Intuitively, Intuitively, at least, the the judges know this. press This is not meant to diminish the value of normative theories theories of This is to value constitutional interpretation. To the contrary, the idea of of dialogue dialogue enconstitutional To courages such theories, to to be used as arguments in the the dialogue dialogue itself. itself. courages But rather rather than posing as ·"correct" *"correct" because of divine divine adherence to to But some constitutional plan, such theories must rest, and persuade, based some such must 4 524 on their own value.52 Dialogue simply is inevitable. Wish as some might that constitutional determinacy existed, the fact is that the Constitution is spacious and admits admits of of diverse interpretations. Moreover, the reality of our sysand tem is that to tem is that the people speak to their judges, and the judges speak to acknowledge the flexibility of this system, and the people. We should acknowledge determine what we can make of it, rather than deny it.

THE LITILE LITTLE PRINCE PRINCE AND AND THE COURT IV. CONCLUSION: CONCLUSION: THE Millions of adults and children children alike have been moved by Antoine 25 de Saint Exup6ry's story The Little Prince. Prince.5525 I happened to be readde Saint Exupery's ing the the book book while ing while working working on this article, and one tale seemed seemed such such an apt parable for my entire point that I brought the book to school an apt parable 26 class.5526 Federal Courts and read read aa chapter chapter to to my my Federal Courts class. In Chapter 325, and there he Chapter Ten the Little Prince visits Asteroid Asteroid 325, meets aa king. Tired meets Tired from his journey, the little prince prince yawns, which which evokes instant criticism from the king. "It is is contrary contrary to etiquette to yawn in the presence of a king," king," the monarch said so." him. "I "I forbid you to do so." arch said to him. "I can't little prince, "I can't help help it. it. II can't can't stop stop myself," myself," replied replied the the little prince, thorthorDahl, Court as Dahl, Decision-Making DeCision-Making in in a a Democracy: Democracy: The The Supreme Supreme Court as aa National National Policy-Maker, Policy-Maker, 6 J. PUB. L. 279 (1957). Compare PUB. L. 279 (1957). Compare Dahl's Dahl's more recent recent statement: statement: Jurists to be be sharply sharply at at odds odds with with the the basic outlook outlook of the president president or or a majority majority of of Jurists known known to senators senators are are not not nominated nominated by by the the president president and confirmed confirmed by by the the Senate. Senate. Thus the views views of of aa majority of justices of the majority of justices of the Supreme Supreme Court Court are are never never out out of line line for for very very long with with the the views views prevailing of the the country. prevailing among among the the lawmaking lawmaking majorities majorities of DAHL, DAHL, supra supra note note 48, 48, at at 190; 190; see see also Ely, Ely, supra note note 28, 28, at 842-54 842-54 (discussing (discussing politicization politicization of of the the judicial judicial appointment appointment process process and and its its impact impact upon upon appointments). 523. 523. See See TUSHNET, TuSHNET, supra supra note note 162, 162, at at 169-70 169-70 ("[Clourts ("[Clourts are are unlikely unlikely to to remain remain substantially substantially out out of of line line with with the the majority's majority's views views for for very very long."). long."). 524. supra note note 473, 473, at at 87 87 (decrying (decrying tendency tendency to to equate equate question question of ofwhether whether case case was was 524. Carter, Carter, supra "wrongly "wrongly decided" decided" with with question question of of whether whether decision decision is is "beyond "beyond the the power" power" of of the the Court), Court); see also also Carter, Carter, supra note note 388, 388, at 846-47. 846-47. 525. SAINT EXUpfRY, EXUPERY, supra supra note note 35. 35. 525. SAiNT 526. 526. The The following following discussion discussion and and quotation quotation all all refers refers to to Ua id. at at 41-47. 41-47.



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oughly embarrassed. embarrassed. "I "I have have come come on a long long journey, and I1 have have had had no oughly sleep sleep ... ..." "Ab, then," then," the the king king said. "I "I order order you you to yawn. It It is years years since since I1 "Ah, have seen seen anyone anyone yawning. Yawns, to me are are objects of curiosity. have Come, Come, now! now! Yawn Yawn again! It It is is an an order." order." . ."" murmured ''That frightens frightens me... me ... I1 cannot, anymore. anymore ... murmured the the little "That completely abashed. prince, now completely Hum!" replied the the king. "Then "Then I1 - I1 order you sometimes sometimes to "Hum! Hum!" --" sometimes to -" yawn yawn and sometimes sputtered a little, and seemed seemed vexed. vexed. He sputtered fundamentally insisted insisted upon was that his authority For what the king fundamentally 27 He tolerated tolerated no disobedience. disobedience.5527 He was an absoabsoshould be respected. respected. He should his orders made he very good man, he was a But, because lute monarch. monarch. very he 5 28 reasonable. 528 reasonable.

little prince and the king entered entered into a discussion, in And so the little he was was entitled entitled to to command command absolute which the the king explained explained that he which because his orders orders were always objectively objectively reasonable. "Ac"Acauthority because cepted authority rests first of all on reason. If you ordered ordered your people themselves into the sea, they would rise up in revoluto go and throw themselves obedience because my orders are tion. I have the right to require require obedience '5 29 reasonable."529 reasonable. The king, of course, is our Supreme Court, and the prince one of of subjects. Despite the Court's insistence the Supreme Court's Court's SUbjects. insistence on its clearly rests on reasonableabsolute authority, the Court's Court's authority authority clearly reasonableorder. of a judicial premises of the acceptance ness -- on popular popular acceptance But the parallel does not end end there. I began with Bickel. Perhaps Perhaps Branch was Least Dangerous the most controversial controversial aspect of The Least Dangerous Branch advocated Virtues, by which Bickel advocated Bickel's discussion Passive Virtues, discussion of The Passive justiciability doctrines to ensure that the Court only the Court's use of justiciability something when the time was right, when acceptance ordered something acceptance could be 5 30 anticipated. anticipated.53o This point did not escape the king's notice. Given the king's absolute dominion, the little prince requested requested a sunset. "You shall have your sunset. 1I shall command command it. But, according to my favorable." conditions are favorable." science of government, 1I shall wait until conditions science little prince. the be?" inquired ''When "When will that be?" "Hum!I Hum!" replied the king; and before saying anything else he "Hum Hum! That will be about - about consulted a bulky almanac. "Hum! Hum! - that will be this evening about twenty minutes to eight. And you will 1, 17-20 (1958). Cf Cooper v. Aaron, 358 U.S. I, 527. Cj. (1958). 528. SAINT EXUPtRY, EXUPERY, supra supra note 35, at 41-42. 529. Id Id. at 45. 111-98. supra note 2, at 111-98. BicKEL, supra 530. BICKEL,


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see how well well II am am obeyedl"S31 obeyed!" 53 1 see

of course, as as society has caught on to our our Court, Court, the little Well, of the king. king. The little prince wished wished to go. go. The king prince caught on to the "No." "'If "'If your your Majesty Majesty wishes wishes to to be promptly promptly obeyed,' obeyed,' [the [the said "No." little prince] said, 'he should be able able to to give me a reasonable order. order. He order me me to to be gone gone by the end end of of one one should be able, for example, to order favorable ...... . .''"532 arefavorable conditions are that conditions "S32 minute. It seems to me that When the king failed to answer, the the little prince ("with ("with aa sigh") When took his leave. Never Never to be out of step, the king responded. "'I "'I make Ambassador,' the king called called out, hastily. He had aa magnifiyou my Ambassador,' authority." 533 cent air of authority."s33 This analogy, for all its resonance, may seem to provide an unduly cynical and greatly understated view of the Court's authority. 1I do not to intend to paint such aa picture. But remember, this article responds to what 1I view as a great error leaning in the other direction, the error of the countermajoritarian countermajoritarian difficulty. The problem with the countermajoritarian difficulty is that it overstates overstatesthe role of courts and countermajoritarian thus understates society's responsibility. My point is that we should neither understate nor nor overstate the role of courts; we must account account accurately for the critical role of the rest of society, the people. One of my favorite thoughts in this regard comes from Judge Learned Learned Hand: Liberty lies in the the hearts of men men and women; when it dies there, no conLiberty lies in hearts of stitution, no law, law, no court can save it; no constitution, no law, no court stitution, court can even do much to help it. 3 4While it lies there it needs no constitution, can constitution, 5 save it. to save court to law, no no law, no court it. S34

531. 531. 532. 532. 533. 533. 534. 534. 1960). 1960).

SAiNT SAINT ExuPARY, EXUPERY, supra supra note note 35, 35, at at 45. 45. Id. Id. at at 47 47 (emphasis (emphasis added). added). IId. LEARNED LEARNED HAND, HAND, The The Spirit Spirit of ofLiberty, Liberty, in in THE THE SPIRrr SPIRIT op OF LiBERTY LIBERTY 189, 189, 190 190 (3d (3d ed. ed.
