Michigan Law Review Volume 94 Issue 2 1995 Policy Distortion and Democratic Debilitation: Comparative Illumination of the Countermajoritarian Difficulty Mark Tushnet Georgetown University Law Center Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Constitutional Law Commons, and the Supreme Court of the United States Commons Recommended Citation Mark Tushnet, Policy Distortion and Democratic Debilitation: Comparative Illumination of the Countermajoritarian Difficulty, 94 MICH. L. REV. 245 (1995). Available at: https://repository.law.umich.edu/mlr/vol94/iss2/2 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. POLICY DISTORTION AND DEMOCRATIC DEBILITATION: COMPARATIVE ILLUMINATION OF THE COUNTERMAJORITARIAN DIFFICULTY Mark Tushnet* James Bradley Thayer set the terms of the past century's discus­ sion of judicial review in The Origin and Scope of the American Doctrine of Constitutional Law. 1 Thayer was concerned with what Alexander Bickel labeled the "countermajoritarian difficulty" with judicial review,2 that judicial review displaces decisions made by near-contemporaneous political majorities and therefore is open to the charge that it is undemocratic. Thayer attempted to minimize the displacement- of political majorities through his "clear error" rule, according to which courts should not overturn legislation un­ less "those who have the right to make laws have not merely made a mistake, but have made a very clear one, - so clear that it is not open to rational question."3 The generations that succeeded Thayer found that solution unpalatable.4 * Professor of Law, Georgetown University Law Center. B.A. 1967, Harvard; J.D. 1971, M.A. 1971, Yale. - Ed. I would like to thank Paul Gewirtz, Alan Hutchinson, Vicki Jack­ son, Elana Kagan, Dan Kahan, Donald Kommers, Wtlliam Landes, Roderick Macdonald, Michael Perry, David Schneiderman, Stephen Schulhofer, Carlos Vasquez, and Paul Weiler for their comments on a draft of this article, and Ian Ayres, Alan Schwartz, and Dan Shaviro for suggestions about particular lines of argument that I develop. Nona Liegeois and Melissa Newman provided valuable research assistance. I received helpful comments from partici­ pants in workshops at Yale Law School, Northwestern University Law School, the University of Chicago Center for Comparative Legal History and Law School, and New York University Law School. An early version of Parts II-A and Il-B was presented as part of the Eighth Seegers Lecture, Valparaiso University School of Law, in 1991, and I thank Dean Edward McGlynn Gaffney for inviting me to deliver the lecture. 1. James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitu­ tional Law, 7 HAR.v. L. REv. 129 (1893). See generally Symposium, One Hundred Years of Judicial Review: The Thayer Centennial Symposium, 88 Nw. U. L. REv. 1 (1993). 2. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF Pouncs 16-17 (1962). 3. Thayer, supra note 1, at 144. 4. Among contemporary constitutional theorists, almost no one accepts Thayer's minimalism across-the-board. Henry Monaghan may be the sole exception. See Henry P. Monaghan, Our Perfect Constitution, 56 N.Y.U. L. REv. 353 (1981). A broad generalization, inaccurate only at the margins, is that nearly every constitutional theorist urges minimal judi­ cial review and vigorous democratic dialogue on issues on which the theorist believes her preferred position is likely to prevail in the democratic dialogue and more-than-minimal re­ view on issues on which the theorist believes her preferred position is unlikely to prevail 245 246 Michigan Law Review [Vol. 94:245 Instead of reducing judicial review to Thayer's minimal level,s scholars have attempted to work around the countermajoritarian difficulty by identifying a domain in which more-than-minimal judi­ cial review is compatible with democratic theory. Some originalists conclude from their examination of the relevant materials that more-than-minimal judicial review is sometimes justified because judicial enforcement of the Constitution's original meaning carries out the only agreement binding the people's representatives.6 Process-oriented theorists argue that such review is justified when the majoritarian deficit associated with judicial review is smaller than the majoritarian deficit associated with other decisional processes.7 The variations on these themes have preoccupied con­ stitutional theorists in the United States for generations.8 Even Bickel's emphasis on justiciability doctrines as a way of reducing the occasions for judicial review was designed to ensure the effec­ tiveness of the Court's actions when it did exercise more-than­ minimal review. Perhaps democratic theory does allow for some displacement of near-contemporary majority views. Both Thayer and Bickel, how- there. For dramatic illustrations from two of the best, see CASS R. SuNSTEIN, THE PARTIAL CONSTITUTION (1993), especially at 315-17 (arguing that courts should require governments to fund abortions, at least in cases of rape and incest) and 228-30 (arguing that courts should not restrict government regulation of campaign finance), and Michael W. McConnell, The Selective Funding Problem: Abortions and Religious Schools, 104 HARv. L. REV. 989 (1991) (arguing that courts should require governments to assist parents with tuition charged by religious schools and that courts should not require governments to assist in paying for abortions). 5. I take the term "minimalist" from Michael J. Perry, The Constitution, the Courts, and the Question of Minimalism, 88 Nw. U. L. REV. 84 (1993). 6. That is, the justification for making originalist materials authoritative is that doing so carries out the agreement. For another band of originalists, originalism is justified, not be­ cause it is compatible with democracy, but because it is the only account of constitutionalism that is compatible with the proposition that the Constitution is law. For myself, I find this definitional "justification" of originalism normatively unsatisfying; justifying originalism as compatible with democracy, in contrast, has what I regard as the appropriate form. 7. This formulation is designed to take into account Charles Black's important but widely overlooked point that we ought to distinguish between judicial decisions overturning statutes, for example, a statute specifically authorizing searches of automobile junkyards on less-than­ probable cause, and judicial decisions overturning specific decisions made by officeholders, for example, a search of an automobile junkyard on less-than-probable cause by an individ­ ual police officer acting solely under her general authority to investigate the possibility that some crime has been committed. See CHA.ru.Es L. BLACK, JR., STRUCTURE AND RELATION· SHIP IN CONSTITUTIONAL LAW 77-93 (1969). A court's relative majoritarian deficit is surely larger in the first than in the second situation, and - perhaps - an individual police officer may have less majoritarian legitimacy than a court. 8. I do not exempt myself from this observation, although I believe that my critical ap­ proach did not force me to engage in a normative defense of any particular version of the allocational strategy I describe. See MARK TusHNET, RED, WHITE, AND BLUE: A CruncAL ANALYSIS OF CONSTITUTIONAL LAW (1988). But see PmuP BOBBITT, CONSTITUTIONAL IN· TERPRETATION 126-40 (1991) (characterizing my approach as prudentialist). November 1995] Comparative Countermajoritarian Difficulty 247 ever, were concerned with other costs associated with more-than­ minimal judicial review. Judicial review, according to Thayer, "has had a tendency to drive out questions of justice and right, and to fill the mind[s] of legislators with thoughts of mere legality . And moreover, even in the matter of legality, they have felt little respon­ sibility; if we are wrong, they say, the courts will correct it."9 Not only would judicial review displace majoritarian decisionmaking; it might also distort and debilitate it. First, judicial review might dis­ tort decisionmaking by injecting too many constitutional norms into the lawmaking process, supplanting legislative consideration of other arguably more important matters. Second, judicial review might debilitate decisionmaking by leading legislatures to enact laws without regard to constitutional considerations, counting on the courts to strike from the statute books those laws that violate the Constitution, leading to the problem of debilitation. Looked at from one point of view, these problems are in some tension. The problem of policy distortion arises when legislators take what the courts say about the Constitution's meaning too seri­ ously, and the problem of democratic debilitation arises when legis­ lators and their constituents do not take the Constitution's meaning - or more precisely, their own views about that meaning - seri­ ously enough. The problems would be troublesome if one occurred with respect to some issues and the other with respect to other is­ sues or at other times. A legislator may fail to give enough weight to constitutional concerns about welfare reform but may give too much weight to the Supreme Court's constitutional