Introduction
Any reasonably informed observer of U.S. constitutional cases would have to admit that most of the important constitutional decisions of the Supreme Court are reached on (so-called) ideological grounds.1 The justices’ moral, political, sometimes even religious, convictions tend to influence, not to say determine, the outcome of their decisions on constitutional matters, though, of course, rarely the public reasons given for them.
The reasons are always cast in legal terms and phrased as legalisti- cally as possible. But when we hear the outcome of constitutional cases, we are very rarely surprised. To the extent that an upcoming decision is not entirely predictable, [1] the uncertainty is due to one swing vote - at most two - on the Court. I am not suggesting that this is always the case. Some decisions on constitutional matters are not fraught with overt moral, political or religious issues, and sometimes it is difficult to trace the justices’ reasons to any particular ideological convictions. But most of them are. And in most constitutional cases, decisions depend on the individual makeup of the Court. In some periods, liberal justices dominate and we get, by and large, liberal outcomes; in others, as nowadays, conservative justices form the majority and we get, by and large, conservative decisions. Either way, surprises are very rare and even if they occur, in retrospect they are often explicable on grounds of political maneuvering in or by the Court.[2]None of this is news, of course. On the contrary, the general perception of constitutional cases in the U.S. as ideologically determined is widely known, publically debated and, generally speaking, entirely on the surface of public consciousness. But this begs an obvious question: Why do we go for it? What moral-political reasons can support a constitutional structure that gives an essentially nondemocratic institution, composed of a handful of people appointed for life and not (professionally or politically) accountable to anyone, the power to prevail over the decisions of the democratically elected Congress and state legislatures? Considering the enormous resources we spend on maintaining the democratic process, it seems utterly puzzling that we are willing to put the outcome of this process at the mercy of an unelected institution that is not democratically accountable.
Most supporters of constitutionalism in the U.S.
tell us that it is precisely the nondemocratic nature of the Court - its detachment from representative democratic procedures - that warrants the current constitutional structure. What we need, we are told by supporters of constitutionalism, is precisely this counter-majoritarian element in the system, in order to curtail, at least to some extent, the political and legal power of the majoritarian decision procedures that are instantiated by the democratic legislative institutions. In other words, and simply put, the idea is that constitutional judicial review is needed as a countermeasure to ordinary democratic procedures, as a limit on majority rule. I am not suggesting that this is the only rationale on offer justifying the current U.S. system of constitutional judicial review. But it is the one that I will consider in this paper.There are, of course, various ways to push back on the counter-majoritarian rationale of constitutionalism. Some political philosophers have argued that no such curtailment is needed. They say that majority rule, adequately structured, is fair and good, and that there is no need for judicial review[3]; others have argued that, even if there is such a need, the current system of judicial review is fraught with too many difficulties and raises more problems than it solves. In this essay, however, I want to suggest a different line of response to the counter-majoritarian rationale of judicial review. I will argue that there is very little difference between the current structure of constitutional review in the U.S. and a system that would impose limits on majoritarian decision procedures by an entirely randomized mechanism. Showing that may not amount to a conclusive argument against judicial review, far from it, but I hope it will give us some pause.
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