Counter Majoritarianism
The intuitive appeal of the argument I try to articulate here crucially depends on the premise that a very significant random element is already present in the current system of CJR.
Constitutional decisions of the Supreme Court reflect a certain distribution of ideologies espoused by justices on the Court at any given point in time; furthermore, given the appointment procedures and especially the justices’ unlimited tenure on the Court, the particular distribution of moral, political and religious views on the Court is not necessarily representative of the views held by the general population.[19] Now, of course, supporters of CJR would claim that this is as it should be. After all, if the whole point of CJR is to act as a counterbalance to majority rule, curtailing the populist temptations of such procedures, the fact that the Court is not a representative institution is probably a good thing. But presumably it is a good thing only if it is not essentially random. If there is something both non-representative in the Court’s constitution, and yet the likely outcomes of its decisions are random relative to the views and preferences of the majority, then we might as well have RJR, which at least satisfies a certain criterion of fairness. In short, my point is that the non-representative or non-majoritarian nature of the Court is not, by itself, a reason to prefer it over any other randomized non-majoritarian system; it has to be non-majoritarian in the right way.So what makes the Court non-majoritarian in the right way? Some people might find it strange to think of the U.S. Supreme Court as a non-majoritarian institution when its decisions are reached by a regular majority vote. But we can bracket this concern for a while. Let us look at the kind of considerations invoked in support of the idea that decisions of the U.S.
Supreme Court are likely to impose limits on majority rule in some sense that is preferable to a random decision procedure. Some of the familiar points we can dismiss quickly. One consideration often mentioned points to the legal expertise of the justices. Even if we do not doubt that the justices are ideologically divided and often follow partisan political views, they are, after all, great legal minds, endowed with a huge amount of expertise in the law. That is true, of course; I would be silly to deny that the justices are among the greatest legal experts in the country. But the problem is that most constitutional cases, certainly most that really matter, are not about technical legal issues. They pose moralpolitical problems, and the dilemmas the Court faces are moral and political dilemmas, not legal ones. Expertise in the law does not make anyone an expert in morality, even if there is such a thing, which I doubt.[20]Similar considerations apply to the deliberation process in the Court. One might think that the adversarial and intellectual nature of Court deliberations are conducive to reasoned decisions that are likely to result in sound decision. After all, justices are presented with a wide range of arguments from both sides, they get an opportunity to question the attorneys in oral hearings, they have to explain their decisions in a detailed and argumentative manner, and so on and so forth. There is a lot to be said in favor of the relatively intellectual nature of this process. But the truth is that the process makes very little difference. At the end of the day, there is a vote, and the vote, as we noted, almost invariably reflects the moral, political and religious convictions that the justices started with. I am sure that the process helps the justices and their clerks formulate their legal opinions in more reasoned and argumentative manner; it does not help them to see the world differently from what they are used to. If I am wrong about this, we should have seen many more cases in which constitutional decisions of individual justices surprise informed observers.
But the fact is that surprises are very rare, and almost always relate to the decision of a swing voter on the Court, the justice who tends to be the ideological independent, so to speak. That does not seem to be anti-majoritarian in the right way; it is anti-majoritarian in a random way, depending on historical circumstances, such as which justice was appointed by whom, when and how long the justice hangs on to his or her job on the Court.If we want to find some serious considerations that support the idea that the Court’s nondemocratic character constitutes some anti-majoritarian limit on democratic procedures in the right way, we need to look at deeper structural factors. We need to look at the kind of constraints that the Supreme Court, as an institution, is likely to impose on majority rule regardless of its momentary, accidental, personal composition. Some rough and vague generalizations are possible; it is generally true that courts tend to be relatively conservative institutions. They tend to reflect elitist world views. Courts typically avoid extreme positions on most social and moral issues and, crucially, they tend not to fall too far out of line with the views and dispositions of the median voters in the country. Courts tend to remain within fairly secure boundaries of social consensus, not statistically and accurately so, for sure, but roughly and generally.[21] That is so mostly because their power base is social acquiescence, not brute force. Courts gain all the power they have from the perception of the population that the power they exercise is legitimate. They cannot act, at least for the long run, in ways that would antagonize their power base, which is, essentially, popular acquiescence to their legitimacy.[22] This is evident in cases of national emergencies, when courts tend to rally to the flag as quickly and as unre- flectively as everybody else in the country.
So where does all this lead? Well, it leads to the idea, a kind of reassurance, that, even if there is something random and arbitrary in the outcomes of constitutional cases of the Supreme Court, at least the boundaries are relatively secure.
The chits are unlikely to fall far out of line with the national-cultural consensus. Let us suppose that this piece of armchair political science is true. The problem is that it would not support a good argument. If what makes CJR non-majoritarian in the right way is based on the premise that CJR is likely to reflect social-cultural consensus, at least generally and in the long run, as it were, then why do we need it to begin with? It would seem that we lost the underlying rationale of CJR, which is to put some limits on majority rule. Surely the ordinary democratic processes reflect social consensus with greater accuracy than the courts. In short, if the main justification for preferring CJR over RJR rests on the assumption that constitutional decisions are likely to reflect social consensus, the need for any form of constitutional judicial review is cast in serious doubt. Democratic legislative processes tend to do a much better job in that; they tend to be much more attuned to social and cultural trends in society than the courts.2.6