ABSTRACT
Since legal scholar Alexander Bickel coined the phrase “countermajoritarian difficulty” over 50 years ago, it has been the dominant frame for assessing the democratic valence of judicial review. Defenders and critics of the practice have placed it outside of, or opposed to, democracy for better or worse. This chapter seeks to challenge this framing on both empirical and theoretical/normative grounds. Empirically, the “countermajoritarian difficulty” framing cannot stand up to scrutiny in light of recent scholarship on the relationship of courts to other branches of government, or their general fealty to public opinion. Normatively, it implies a uniqueness for judicial review that cannot stand up to scrutiny—it is one of many veto points and non-majoritarian systems in contemporary democratic political systems. Judicial review does pose challenges to democracy—in particular, it can allow legislators and other actors to evade democratic accountability—but the countermajoritarian difficulty framing obscures, rather than illuminates, these challenges. An alternative is needed. We begin the process of sketching an alternative here, offering a brief account of our theory of “democracy-against-domination,” and point to how such an approach might be used to evaluate judicial review.
