Squaring the Progressive Constitutional Circle

As I have discussed in previous posts and a recent paper, public choice has freed originalism from the countermajoritarian difficulty by showing that it is an interpretative method well suited to enforce a constitution that is in its formation and essence anti-majoritarian. But many scholars are resistant to the truths of public choice and continue to be attracted to the essentially majoritarian paradigm of Progressivism. Their difficulty is that the modern Court has often invalidated the actions of majorities without any substantial support in the text of the Constitution. Thus, scholars have attempted to square the circle to preserve the Progressive paradigm by showing that the Court’s actions can meet some definition of majoritarianism and do not reflect judicial usurpation of the political process. Here is a thumbnail sketch (and critique) of three of the most prominent attempts.

John Hart Ely and Democracy and Distrust. In my view the strongest way of meeting the countermajoritarian difficulty is John Hart Ely’s Democracy and Distrust.  Ely dismisses clause bound originalism but sees judicial review as justified when it reinforces and refines democratic outputs. Thus, anti-discrimination principles are to be enforced, because they prevent the political process from being distorted by racial and gender stereotypes. Similarly, free speech permits people to deliberate and thus reinforces democracy.

But Democracy and Distrust famously does not justify Griswold or Roe v. Wade, because it is difficult to see these decisions as reinforcing the democratic process rather than providing substantive rights. Thus progressives who today almost universally want to preserve a jurisprudence that expands what they consider to be core human rights need other theories to address the countermajoritarian difficulty.

Barry Friedman and Majority Will Barry Friedman in his book The Will of the People: How Popular Opinion Influences the Supreme Court provides another possible route to justifying substantive progressive decisions. He argues that in the long run for the most part the Supreme Court follows popular opinion. If the Court largely follows majority will, there should be little concern with the countermajoritarian difficulty.

While an interesting effort, Friedman’s claim is belied by the facts. That the Court is an institution constrained by other institutions should not be confused with the claim that it follows popular will. First, as a matter of structure, the judiciary is substantially insulated from popular opinion. Second, others have suggested, correctly in my view, that the Court is more likely to follow elite opinion. Elites possess the power to determine judicial reputation. As a result, the Court tends to be particularly out of step with the will of the people when elite opinion sharply diverges from popular opinion, on such issues as prayer in schools.

Reva Siegel and Social Movements Reva Siegal has argued that enduring Supreme Court decisions can be a product of social movements. In so  far as this theory attempts to justify Court decisions (and it is not clear that this is the way that Siegal uses it although others have), it has the advantage of not relying on the erroneous claim that Supreme Court decisions tend to link up with majoritarian opinion.  But the Tea Party is a social movement that disagrees with Occupy Wall Street. Judges would be left in the position of deciding among  conflicting social movements. It will still be judges, not popular opinion, that ends up counting.