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The History of the Countermajoritarian Difficulty, Part Five Article The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five Barry Friedmant CONTENTS I. INTRODUCTION ................................................................................... 155 II. PRE-T EX I ........................................................................................... 162 t Professor of Law, New York University School of Law. A.B., 1978, University of Chicago; J.D., 1982, Georgetown University. My deep thanks to the many colleagues who offered assistance with this project by reading an earlier draft or discussing these ideas at length with me: Jill Anton, Rachel Barkow, Yochai Benkler, Rebecca Brown, Jesse Choper, Anastasia Crosswhite, Michael Dorf, Norman Dorsen, Christopher Eisgruber, Richard Fallon, Dan Farber, Stephen Feldman, Phil Frickey, Howard Gillman, Mark Graber, Stephen Griffin, Laura Kalman, Michael Klarman, Larry Kramer, Kurt Lash, Daryl Levinson, Ken Murchison, William Nelson, Rick Pildes, Ed Purcell, Gary Rowe, Larry Sager, Michael Seidman, Suzanna Sherry, Jeannie Suk, Dalia Tsuk, Mark Tushnet, Kenneth Ward, and Nick Zeppos. The paper was improved by comments received at a Vanderbilt Law School faculty workshop, a New York University Legal History Colloquium, a University of Texas faculty workshop, a panel at the Law and Society Association Annual Meeting, and a panel at the American Political Science Association Annual Meeting. I'm especially grateful to my editors at The Yale Law Journal for a set of extremely helpful comments. My research assistants, Melissa Aoyagi, Stacey Brandenberg, Anastasia Crosswhite, Stacy Feld, Jeremy Saks, and Christina Sanford offered invaluable assistance, as did Lisa Mihajlovic. This project could not have happened without the extraordinary reference librarians at the Vanderbilt Law School and NYU School of Law libraries. I am grateful for the financial support of the Filomen D'Agostino and Max E. Greenberg Research Fund. This whole project was cooked up while at the Rockefeller Foundation Study Center in Bellagio, Italy. 153 Imaged with the Permission of Yale Law Journal 154 The Yale Law Journal [Vol. 112:153 III. TEXT AND CONTEXT ...........................................................................167 A . Theory ..........................................................................................168 1. JudicialSupremacy ...............................................................168 2. ConstitutionalIndeterminacy ................................................171 3. Democracy ............................................................................172 4. The Court's Work (andthe Idea of the Majority).................. 173 5. In Sum ....................................................................................176 B. H istory .........................................................................................176 1. 1939-1951: The Lull... and the Seeds .................................176 a. The Court Does Little and GarnersLittle Reaction........ 176 b. Nonetheless, Academics Fret.......................................... 181 2. Brown v. Board of Education: 1954...................................... 185 a. Public D ebate .................................................................185 b. Academic Silence ............................................................191 3. The "Communist"Decisions: 1957 ......................................193 a. The Court in Trouble ......................................................193 b. Academic Crescendo....................................................... 197 4. Bickel, the "Counter-MajoritarianDifficulty, " and the Second Warren Court............................................... 201 5. The Busy Sixties .....................................................................202 a. School Prayer: 1962-1963 ..............................................203 b. Reapportionment: 1962-1969 .........................................206 c. The Rights of CriminalSuspects .....................................210 IV .SUBTEXT .............................................................................................215 A. The Long Shadow of the ProgressiveEra .................................... 217 1. The Problem with the Countermajoritarian Problem at Mid-Century .......................................................218 2. The Lingering Odor of the Realist Critique ..........................222 B. The Law of the Fathers................................................................ 228 C. The Liberals'Dilemma ................................................................237 1. The Double Standard............................................................ 237 2. Unsuccessful Attempts To Explain the JudicialRole ............241 3. The Liberal Tension ...............................................................247 4. Needing the Court .................................................................255 V . CONCLUSION ......................................................................................256 Imaged with the Permission of Yale Law Journal 2002] The Birth of an Academic Obsession I. INTRODUCTION The "democracy" issue is a mirage; we are led back around to the question on its merits.' Sit tight, the worm is about to turn again in constitutional "theory." Fed up with the activism of the Rehnquist Court, academics are coming to see the central obsession of constitutional theory in an entirely new light. Before, the central obsession was the inconsistency between judicial review and democracy. Now, it is the inconsistency between judicial review and democracy. If this seems confusing, it ought to. For decades, legal academics have struggled with the "countermajoritarian difficulty": the problem of justifying the exercise of judicial review by unelected and ostensibly unaccountable judges in what we otherwise deem to be a political democracy. This was a largely liberal academy raised on the legacy of the Warren Court and hopeful that those days of judicial liberalism would return. 2 But after Bush v. Gore3 and numerous recent Supreme Court decisions striking down progressive congressional legislation,4 liberal academics are finally getting the message: The Supreme Court is not their friend and is not likely to be anytime soon. This has led to a spate of articles decrying the inconsistency of democracy with judicial review, and calling for constitutional interpretation outside the courts.5 1. CHARLES L. BLACK, JR., THE PEOPLE AND THE COURT 181 (1960). 2. For the story, see generally LAURA KALMAN, THE STRANGE CAREER OF LEGAL LIBERALISM (1996). 3. 531 U.S. 98 (2000). 4. E.g., Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) (striking down a provision of the Americans with Disabilities Act that imposed monetary liability on states); United States v. Morrison, 529 U.S. 598 (2000) (striking down the civil damages remedy of the Violence Against Women Act); Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000) (striking down a provision of the Age Discrimination in Employment Act imposing monetary liability on states); Alden v. Maine, 527 U.S. 706 (1999) (barring Fair Labor Standards Act claims against nonconsenting states in state courts). 5. See, e.g., MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS 194 (1999) (arguing for a "populist constitutional law" where "the public generally should participate in shaping constitutional law more directly... [and] reclaim [the Constitution] from the courts"); Rachel E.Barkow, More Supreme than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 COLUM. L. REV. 237 (2002) (ruing the extent of judicial supremacy vis-A-vis coordinate branches, and calling for the revival of the classical political question doctrine to enhance the ability of other branches to say what the law is); Larry D. Kramer, The Supreme Court, 2000 Term-Foreword. We the Court, 115 HARV. L. REV. 4, 15-16 (2001) (arguing for a stronger, coequal role for the executive and legislative branches of government, acting as agents of the people, to interpret and implement the Constitution); Robert C. Post & Reva B. Siegel, Equal Protection by Law: FederalAntidiscrimination Legislation After Morrison and Kimel, 110 YALE L.J. 441, 444 (2000) (analyzing recent Supreme Court decisions invalidating congressional statutes enacted under the Commerce Clause or Section 5 and "question[ing] the court-centered model of constitutional interpretation that these decisions assume [by] examining the relationship between Court and Congress" and "argu[ing] that this Imaged with the Permission of Yale Law Journal The Yale Law Journal [Vol. 112: 153 Matters should now be clearer. Before, judicial review was good-so long as it was used properly. Now, judicial review is bad. The curious thing, of course, is that under either scenario, scholars see a countermajoritarian problem; under either formulation, they describe an inconsistency between judicial review and democracy that needs to be addressed. It is simply that now-in response to the Supreme Court's present agenda-a project of justification has turned to one of critique. In fairness, if the "theory" of liberal scholarship sometimes seems overly driven by a desire for preferred outcomes, conservative scholars are prone to the same problem. What, after all, were conservatives ever doing complaining about judicial activism? Conservatives have (almost) always loved the courts, and rarely loved the people. Of course, they've almost always had the courts,
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