Lawrence DouglasFebruary 5, 2007 - 11:22am0 comments
The Most Democratic Branch
How the Courts Serve America
Oxford University Press, $25, 256 pp.
Alexander Bickel, the great scholar of the Supreme Court, famously called the power of judicial review “counter-majoritarian.” Nowhere does the Constitution explicitly grant the Supreme Court the power to declare law unconstitutional. More to the point, the practice is hard to square with the idea of democratic governance. After all, democracies are supposed to vest law-making power in legislative majorities that are electorally accountable to the people. The Supreme Court, by contrast, answers to no electorate, and its members, once nominated by the president and confirmed by the Senate, enjoy life tenure. Why, then, do we permit this unelected elite to overturn and render void the laws framed by the democratic branches of government? Perhaps the most familiar answer to this question turns on the distinction between majoritarian preference and minority rights. While democratic institutions are well equipped to protect and promote the interests of majorities, they function less perfectly when it comes to defending the rights of minorities. This is where the Supreme Court comes in. Insulated from the rough-and-tumble of electoral politics, the Court is institutionally designed to defend minorities against tyrannical majorities. Judicial review permits the Court to strike down laws that violate the fundamental rights-particularly those of minorities-enshrined in the Constitution. A new book by Jeffrey Rosen, legal...