Is the Supreme Court a “Majoritarian” Institution?

Pildes examines whether the decision in Citizens United would substantiate Alexander Bickel's fundamental moral question concerning the role of the Supreme Court in American democracy: the "countermajoritarian difficulty." He addresses many questions about the majoritarian thesis of j...

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Bibliographic Details
Published in:The Supreme Court review 2011-01, Vol.2010 (1), p.103-158
Main Author: Pildes, Richard H.
Format: Article
Language:English
Subjects:
Bickel, Alex
Congressional elections
Constitutional law
Democracy
Impact analysis
Judicial review
Judicial reviews
Judicial rulings
Legal studies
Legislation
Majority rule
Political parties
Political partisanship
Power
Public opinion
State law
Supreme Court decisions
Unconstitutionality
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Summary:Pildes examines whether the decision in Citizens United would substantiate Alexander Bickel's fundamental moral question concerning the role of the Supreme Court in American democracy: the "countermajoritarian difficulty." He addresses many questions about the majoritarian thesis of judicial review and the limits on the Court's power. Citizens United is the most countermajoritarian decision invalidating national legislation on an issue of high public salience in the last quarter century. The decision's practical consequences remain to be seen, but the Court can hardly be said to have acted on a misunderstanding of the likely political reaction. Citizens United is a powerful reminder that, despite the best efforts of modern majoritarian theorists, Bickel's countermajoritarian difficulty endures.
ISSN:0081-9557
2158-2459
DOI:10.1086/658919