The Supreme Court: A Countermajoritarian Galahad?

Supreme Court Justices

It is a widely held belief among Americans that the appropriate role of the U.S. Supreme Court is to check the majoritarian excesses of the other two branches of American government. The legislative and executive branches of government are elected by majority vote. In the national legislature, members of the Senate are elected by popular vote in their home-states, and members of the House of Representatives are elected by popular vote from smaller sub-state districts. In the executive branch, the President and Vice-President are elected by national popular vote mediated through the Electoral College system. Rule by majority consent is the legitimating principle of each of these branches. But the third branch is different. The third branch of national government is headed by the Supreme Court, a nine-member panel of judges (called “justices”) who are each appointed to life terms by the sitting President with the approval of the Senate. These judges enjoy such privileges as life terms with good behavior and the guarantee of undiminished compensation in order to at least partially insulate them from the pressures of popular politics. This insulation is often described as judicial independence and for most people it means that judicial decisions will be based upon the dictates of the law, rather than the vagaries of political fashion. Says law professor Amanda Frost:

The Constitution grants federal judges life tenure and protections against diminution of their salaries, which insulates them from various political and social pressures. Those guarantees allow courts to make unpopular rulings, to stand up to the other two branches of government without fear of retribution, and to assure litigants that judges are not beholden either to state or federal interests. (2008, 1625)

This distinct organization and expectation with regard to the third branch of national government reflects a commitment to what is often called the rule of law.

The rule of law is contrasted with the rule of men, implying a legal system which is non-arbitrary. Typically, a political system is held to instantiate the rule of law to the extent that its legal rules are general in nature, prospective in operation, and equal in application to persons without regard to suspect classifications. Often, and most practically, the rule of law is understood as a commitment to individual rights, especially those of minorities against powerful and potentially encroaching majorities. But rather than supposing a strict antagonism between majority rule and the rule of law, some scholars conceive of a balancing act where “The rule of law rests, first, on the inability of the one or the few to control the many, and second, on the willingness of the many to leave some scope for universal rights” (Helmke & Rosenbluth 347-48).

But how is judicial independence related to the rule of law? A commitment to a rule of law system means in part commitment to an institutional arrangement capable of cultivating and sustaining it. If the first two branches are legitimated by majoritarianism—compliance with the wishes of a majority of citizens—then the third branch might be legitimated by its capacity to resist the will of the majority when such will encroaches upon that sphere reserved for individual rights in general and minority rights in particular. Thus, the Supreme Court might be said to be a counter-majoritarian institution meant to serve as a check on the majoritarian tendencies of the other two branches where those tendencies would lead to violation of rule of law principles.

But is the Court truly counter-majoritarian? It depends on what behavior by the Court is required to consider it so. According to Robert Dahl’s “Decision-Making in a Democracy: The Supreme Court as a National Policy-maker” (1957), for the Court to be counter-majoritarian is for it to have the demonstrated capacity and willingness to act contrary to the preferences of the current officeholders of two elected branches, which Dahl refers to as the national majority (284). Dahl assumes that there are several reasons to expect the Court to act in concert with the national majority coalition rather than as a counter-majoritarian “Galahad” in defense of minorities (id.). He cites three problems with the Galahad Thesis, each of a different type: ideological, logical, and factual. Ideologically, it would violate the majority-rule principle upon which the American democracy is based if the Court were to act in a counter-majoritarian fashion. Logically, given the selection of judges by popularly elected political elites, one should not expect the court to be at odds with the national majority coalition—except for very short transitional periods in the composition of the national majority coalition. Factually, Dahl argues, the Court has never acted in such a fashion in its 167-year history up till the time of his writing.

Dahl supports his factual claim with a test he devises in which he examines the frequency, direction, and decisiveness of Supreme Court invalidations of statutory enactments on constitutional grounds. First, to determine the frequency of invalidations, Dahl confines his observations to those invalidations of congressional statutes which occurred within 4 years of enactment, supposing that he is weeding out invalidations of enactments which are no longer supported by a live majority coalition. He then examines the direction of the invalidation, i.e., whether the invalidation favors a minority group. Finally, Dahl examines the decisiveness of the invalidation, i.e., the extent to which the Court’s decision stands and is not circumvented by a willful national majority coalition. Overall, the Court fails Dahl’s test, seldom invalidating laws within the 4 year period, seldom in the direction of minorities, and seldom sustained.  Dahl elaborates his findings by noting that “[f]ew of the Court’s policy decisions can be interpreted sensibly in terms of a ‘majority’ versus a ‘minority’” (294). Rather, policy at the national level is the outcome of conflict, bargaining, and agreement among minorities, no group of preference-holders being large or powerful enough to dominate all others.[1] The true role of the Court is that of legitimizer: “at its best the Court operates to confer legitimacy, not simply on the particular and parochial policies of the dominant political alliance, but upon the basic patterns of behavior required for the operation of a democracy” (295).

Jonathan Casper, in his well-known 1976 response to Dahl, “The Supreme Court and National Policy Making,” finds Dahl’s test of counter-majoritarianism too strict and argues that “the Court participates more significantly in national policy than Dahl’s argument suggests” (50). In particular, Casper points out that there are plenty of instances where a 4-year restricted observation of invalidations is unwarranted and excludes much of the Court’s counter-majoritarian activity. Second, in contrast to his 4-year restrictive rule of invalidations, Dahl allows decades to pass to observe whether the Court’s action is countermanded by the national majority coalition. Third, Casper points out how easily Dahl, by narrow specification of his model, misses Court action which is influential in shaping and influencing legislative enactments through selective interpretation of statutory provisions, a considerable part of what the Court does. Finally, Casper also looks at the Warren Court activism which between 1957 and 1976 alone invalidated one-quarter of all cases ever invalidated and in quite Galahadian fashion. Therefore, by Casper’s definition, the Supreme Court of his day was quite active and counter-majoritarian, even if not in the most restrictive Dahlian sense.

Gerald Rosenberg, in his seminal work, The Hollow Hope: Can Courts Bring About Social Change? (2008), marshaled an astonishing amount of evidence in support of his thesis that it is virtually impossible to achieve significant social reform through litigation. Similar to the Dahlian Galahad, he defines the Dynamic Court view as the belief that “courts can be effective producers of significant social reform [and] in some cases, they can be more effective than other governmental institutions” (27). Rosenberg defines the Constrained Court view as holding “that courts will most likely not be effective producers of significant social reform for three reasons: the limited nature of constitutional rights, the lack of judicial independence, and the judiciary’s inability to develop appropriate policies and its lack of powers of implementation” (15). Rosenberg sees the Court as constrained and ill-suited to defend minority rights.

The Hollow Hope

Rosenberg sets his sights on the famous Brown decision, long considered unassailable proof of the efficacy of the Supreme Court in vindicating minority rights, to demonstrate that the Constrained Court view better characterizes the Court’s role in the Civil Rights Movement. The Court in Brown v. Board of Education (1954), overruled its prior holding in Plessy v. Ferguson (1898) and declared that the practice of segregation was “inherently unequal” and, therefore, in violation of the equal protection clause of the Fourteenth Amendment. This decision ordered the end of public school segregation in the United States. Proponents of the Dynamic Court view see the decision as a major victory for civil rights and a crucial turning point for the movement. Rosenberg points out that—with a few high-profile exceptions—virtually no desegregation actually occurred until after Congress enacted a slew of civil rights legislation in 1964 and 1968. Rosenberg also examines issues such as public accommodations and transportation, public housing, and voter registration. In each case, a clear pattern emerges:

Courageous and praiseworthy decisions were rendered, and nothing changed. Only when Congress and the executive branch acted in tandem with the courts did change occur in these fields. In terms of judicial effects, then, Brown and its progeny stand for the proposition that courts are impotent to produce significant social reform (70).

Thus, “Brown is a paradigm,” says Rosenberg, “but for precisely the opposite view” (id.). Throughout his book, Rosenberg considers, tests, and ultimately rejects theories about indirect ways in which the Court’s action might have contributed to the eventual desegregation of the South. Within this seminal work, Rosenberg deals similarly with other policy areas which are regarded as evidence of a dynamic counter-majoritarian court and with similar results. (See Rosenburg’s tribute to Dahl, one of his early influences)

Plenty of other scholars have found the Court politically constrained. The Court has been found to be influenced by court-curbing measures by the other branches (Clark 2009) as well as by public opinion (Casillas 2011; also see Mishler and Sheehan 1993 for empirical evidence of changes in court composition in response to changes in public opinion and changes in a given panel’s decisions in response to changes). Graber (2005) suggests in Dahlian fashion that the Court is really a politically constructed institution, basically relied upon by the other two branches for political cover. What the Court does on this view is allow for the shifting of politically unpopular or intractable decisions and serves as an anomalous balance-shifter in democratic politics.

This presents a mixed picture both of what it means for the Court to be counter-majoritarian and for whether and to what extent such a thing is desirable. It appears that the Court is a balance-shifter in a highly competitive national policymaking environment. It also appears that the Court is somewhat structurally independent but not totally isolated from politics. This is unsurprising. Justices come from the population and there is no reason to assume that they are political eunuchs. They think and are motivated at least in part by their own priors (Segal and Spaeth 1993, Posner 2008), they are influenced by the political environment (Casillas 2011, Clark 2009, Mishler and Sheehan 1993), and the they operate at a level of the judicial hierarchy where the disputes they are called upon to settle are complex, intractable, under-determined by law alone, and where it falls to them to simply decide. Justice Roberts claimed to call balls and strikes, but it is clear to nearly everyone that by the time a matter reaches the Court, a ball or a strike is simply what one can get a majority to vote in support of. This is not to say that the law exerts no force, but that there is often not enough law to go on at the level of the Supreme Court. What constitutes cruel and unusual punishment? There is considerable room for reasonable minds to differ. What specific activities constitute executive power? The Constitution does not define the term. Does today’s government have a duty to affirmatively act to reverse the effects of its own past misconduct with respect to disfavored minorities? If so, how far can it go before it crosses a different line with respect to other groups? The Court is often called upon to decide. And it does not decide in a socio-political vacuum.

But the Court is able to perform this role in which it decides the intractable disputes over constitutional values with a high degree of diffuse support, certainly higher than the explicitly political branches (Caldeira and Gibson 1992). Maybe the Court enjoys this support because it is understood as being a counter-majoritarian final arbiter of what the law requires. The perception of its unique apolitical role seems to help it maintain an unusual amount of public support which is resilient even in those instances where it disappoints.[2]

Below, Justices Antonin Scalia and Stephen Breyer engage in a lively discussion of their view of the role of the Court, the role of the Justices, and approaches to judicial interpretation. It is worth viewing in its entirety:


[1] I note here that this argument, also known as interest group pluralism, is reminiscent of Madison’s argument in Federalist 10 in favor of a large republic in which faction counters faction:

The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter….

The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source.

[2] Think Bush v. Gore (2000) for liberals or NFIB v. Sebelius (2012) for conservatives.

Review: Constitutionalism in Asia in the Early Twenty-first Century

Chen Image

CONSTITUTIONALISM IN ASIA IN THE EARLY TWENTY-FIRST CENTURY is a 400-plus page edited volume of essays exploring constitutional developments in sixteen Asian jurisdictions, including the subnational jurisdiction of Hong Kong and disputed Taiwan. The volume is organized in seventeen chapters—Chapters One, Two, and Seventeen address overall trends in Asian constitutional development. Chapters Three through Sixteen each focus on constitutional developments of the last decade in individual countries—with the exception of Chapter Ten which combines Burma, Cambodia, and Thailand.

While each chapter is distinct in its object of study and approach, the question which binds them together is straightforward and expressed by the editor, Albert H.Y. Chen, early in the first chapter. Essentially, constitutions have been adopted throughout Asia, but to what extent have these forms been truly put into practice? “Although constitutionalism as a theory and practice of government and law first originated in Western Europe and North America,” Chen writes, “there is by now considerable evidence of its positive reception in and successful ‘transplant’ to a significant number of Asian countries” (3). As one might expect, however, “The experience of different Asian countries in this regard provides useful and fascinating case studies of what Grimm calls the ‘achievement of constitutionalism’” (3). Each case study in this volume is indeed fascinating and worth reading altogether or as stand-alone essays.

In Chapter One, Chen observes that written constitutions are ubiquitous in today’s global political landscape: “The possession of a constitution seems to have been accepted by all as a hallmark of the legitimacy of the nation-state and its regime for both domestic and external purposes” (5). This fact alone suggests the reason why constitutions are more common than actual constitutionalism (the latter being loosely defined as the instantiation of limited government and the rule of law). Hence, Chen develops a threefold conceptual framework for assessing the degree to which constitutionalism has truly been achieved in a given political context:

  • Genuine Constitutionalism (GC): constitutionalism in its classical sense, i.e., constraining arbitrary governmental power, etc.
  • Communist/Socialist Constitutionalism (CC): “Leninist-Stalinist forms of rule by a communist party-state legitimized by a written constitution” (14).
  • Hybrid Constitutionalism (HC): “practiced in states in which both elements of liberal constitutionalism and authoritarian elements…exist” (Id.).

Chen places the countries featured in the volume into one of the three types. Japan, India, South Korea, Taiwan, and Indonesia are each classic cases of successful transitions to GC—Japan and India in the Post-WWII period, Taiwan and South Korea since the 1980’s, and Indonesia since the turn of the century. Thailand, Cambodia, and Nepal are each classified as HC—Thailand and Nepal due to recent civil conflicts involving the transfer of power, Cambodia due to “Hun Sen’s strongman rule” (31). North Korea, China, and Vietnam are classified as CC, although the former may be distinguished from the latter two because “the legal reforms and constitutional discourses in contemporary China and Vietnam demonstrate that their constitutions are by no means merely a ‘fake constitution’” (30). The implication, fully elaborated by Dae-Kyu Yoon in Chapter 5, is that North Korea’s constitution “exists essentially as a political manifesto laden with programmatic provisions rather than as a document written to ensure justice for the people” (103).

More interesting is the group of countries which fall into Chen’s classificatory cracks. Malaysia and Singapore, both of which are listed as “Partly Free” in Freedom House’s 2014 report, Chen classifies as “HC or close to GC, depending on how much weight we attach to civil liberties” (31). The Philippines, which Freedom House also lists as “Partly Free” (though ranking ahead of Malaysia and Singapore), Chen classifies as “HC approximating GC” (31). Myanmar—or Burma—is listed as “Not Free” by Freedom House, but is, according to Chen, “now moving in the direction of HC” (31).

Most interesting, Chen omits Hong Kong altogether from his classificatory scheme. This omission might be explained by the fact of Hong Kong’s status as a subnational Special Administrative Region (SAR) of China. On the other hand, subsuming Hong Kong within China seems odd in the context of Chen’s scheme considering Hong Kong’s distinctly Western political culture, the operation of its constitution-like ‘Basic Law’, and the independent treatment it receives in Chapter Eight of this volume. Indeed, as Johannes Chan, the author of Chapter Eight, notes, this ‘one country’ truly does operate as ‘two systems’:

On one side of the border there is a well-established common-law system that rests upon individualism and the doctrine of separation of powers. On the other side of the border there is an emerging legal system that is partly based on socialist ideology, partly based on the civil law system,…subscribes to the supremacy of the soviet and the people’s democratic dictatorship, and operates largely on a central planning system (170).

However, Hong Kong’s recent struggle with the mainland to achieve the election of SAR leadership by universal suffrage reveals that the ‘two systems’ paradigm is not without limits. Chan concedes that “while prepared to tolerate a high degree of autonomy in internal affairs, Beijing, and not Hong Kong, is in control when it comes to democratic development of the political process of Hong Kong” (177), and “to the central government, ‘one country, two systems’ means nothing more than ‘one country, two economic systems’” (192). Hence, where exactly Hong Kong should fit in Chen’s scheme is highly debatable.

Chapter Two, by Tom Ginsburg, addresses the question “Is there a distinctive East Asian constitutionalism?” (32) In so doing, Ginsburg weighs in on the “’Asian Values’ debate of the 1990s” (id.). He uses comparative textual analysis to test whether “Asia [is] fundamentally different with regard to ideas about human rights” (32-33) and finds that “the formal patterns of constitutions in Asia do not reflect the Asian Values argument, at least not in its simplest version” (51). However, as other scholars have observed (See, e.g., North, Summerhill, and Weingast 1999), many constitutional documents have similar key words or boilerplate language which conveys little about the document’s actual operation, a fact demonstrated by the dramatically different experiences of countries studied in this volume despite the coincidence of similar formal constitutional provisions. Key word searches through constitutional texts tell us little. Thus, Chapter Two is interesting but perhaps not essential to the volume.

Overall, this collection of essays on patterns of constitutional development in Asia is a welcome contribution to the comparative constitutional law literature. Its focus on the last decade of Asian constitutional development makes it most helpful as a well-researched and up-to-date guide to current political events unfolding in each of these countries, most dramatically in Hong Kong, North Korea, and Indonesia. This volume, taken as a whole, is a succinct survey of the diverse countries across East, Southeast, and South Asia for busy scholars who sometimes miss the larger political forest for the trees. This volume is also well-organized and well-suited to be assigned to graduate students and advanced undergraduates as select essays in the context of a comparative politics or comparative law course.