Richard H. Pildes, Is the Supreme Court a ‘Majoritarian’ Institution? (December 31, 2010). Supreme Court Review, Vol. 2010, 2010. Available at SSRN: http://ssrn.com/abstract=1733169
In recent years, a number of scholars have argued that the Supreme Court has always been, and is destined to be, a ‘majoritarian’ institution. Building on the work of Robert Dahl, these scholars collectively offer both historical and predictive claims: they assert that the Court’s decisions have tended to reflect the values and preferences of national majorities and that deep structural forces and incentives constrain will continue to constrain the Court from departing from the preferences of these national majorities.
This article takes issue with those claims. Using as a starting point the Court’s dramatically countermajoritarian recent decision in the Citizens United case, this article identifies at least six problems with the majoritarian thesis: (1) lack of clarity about who the relevant majority is that purportedly constrains the Court, such as national lawmaking majorities, national popular opinion majorities, or other possible definitions of ‘the majority’; (2) lack of convincing accounts of the mechanisms by which one or another of these majorities manages to constrain the Court; (3) disagreement about whether the Court’s most momentous decisions, such as Brown v. Board of Education, were in fact majoritarian or not; (4) confusion between whether individual Court decisions reflect majoritarian preferences and whether the Court over long periods of time eventually reflects majoritarian beliefs; (5) failure to take into adequate account the changing power of the Court over time; (6) issues about whether data support the majoritarian thesis.
In addition, this article argues that good reasons exist to believe that the history of judicial review will not necessarily predict its future. However independent the Court might or might not have been in the past of political and popular constraints, the Court is likely to have more autonomy going forward than in the past. The strongest mechanism through which the Court reflects the outcomes of electoral processes, the appointments process, has been attenuated by the much longer average time Justices now serve; seats now become vacant on average every 3.1 years, rather than the 1.6 years that had long been the norm. That makes even more random any linkage between judicial appointments and national electoral outcomes.
The article concludes by offering Citizens United as a powerful reminder that, despite the best efforts of modern majoritarian theorists, Bickel’s countermajoritarian difficulty endures. Citizens United may prove to be an isolated but important episode – or a harbinger of an assertive new era of judicial review that operates with a good deal of independence from national lawmaking and popular majorities.