Balkinization  

Monday, July 01, 2013

Is The Supreme Court a Majoritarian Institution: Historical Contingency

Rick Pildes

With the end of this year's Term, it seems a good time to return to a theme much discussed in recent years, including on this blog:  whether Supreme Court decisions tend to reflect what "the majority" of the country believes/prefers in any event or whether the Court is capable (for better or worse) of acting as a counter-majoritarian institution?

As one new entry point into these issues, consider two interesting, relatively recent posts here.  In the first, Jack speculated in some detail how different constitutional law today would be if President Reagan had nominated Robert Bork in 1986, rather than Justice Scalia (followed by Scalia's nomination to the next open seat).  In the second, Gerard suggested one of the most significant moments in the first President Bush's tenure was the appointment of Justice Souter, rather than a more conservative Justice; Gerard, also, points out how different the law would look today had a different appointment been made (can't manage to find that post to link to it).

Both posts emphasize the powerful role that historical contingency plays in the path of constitutional law, as it does in historical development more generally.  I want to make the connection between those posts and the debates about how majoritarian the Court is or isn't.  If these kind of contingencies, which we might even consider accidental moments of history that could easily have gone a different direction, indeed play a significant role in the development of constitutional law, that surely undermines many of the claims about how the Court's decisions will necessarily tend to reflect the views of "the majority" of the country.  Certainly it undermines the more popular understandings of what that "majoritarian" view of the Court means, as reflected in most journalistic writing on this debate (I realize in the academic literature there are a variety of different stories, including Jack's, about exactly how the majoritarian claim should be understood).

I have always been more skeptical (see here) than many legal academics about the "majoritarian" view of the Court that has emerged in recent years.  Of course, the Court is shaped to some extent by larger cultural, historical, and political forces, and in some banal sense, over long enough periods of time, the appointments process will eventually ensure the Court is not too far outside the mainstream of contemporary politics.  But within those broad constraints, I believe the Court has more capacity -- and increasingly so -- to act differently than current political or popular majorities than many of those in the "majoritarian school" recognize.  Along with the  Citizens United decision, I wonder what the "majoritarians" think about this Term's decisions in the VRA and DOMA cases?  Both 5-4 decisions could easily have come out the other way.  On DOMA, I would think Congress could not enact DOMA if starting from scratch today but could also not repeal it today; popular opinion today is probably divided and in flux, even if there are reasons to believe a majority of the public will eventually accept the principles and outcome of the Court's decision.  I'm sure we will  be hearing much more about the VRA, DOMA, and the issue of how much the Court does or does not reflect current political and popular "majorities."   

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