Tag: counter-majoritarian difficulty

The Scandal of Democracy: Seven Theses for the Socialist Left

1. The Supreme Court has always been the scandal of American democracy. How do you justify the power that nine unelected judges—almost all of them, historically, white men—wield in a society that styles itself a democracy? 2. That scandal reached a peak in the last third of the twentieth century, when a combination of hard-right judicial theorists (Robert Bork and Antonin Scalia among them) and nervous liberals started worrying about what was called “the counter-majoritarian difficulty” or the “counter-majoritarian dilemma.” 3. The result of that reconsideration of the Court and judicial review was, among other things, the theory of constitutional interpretation that we call originalism. Originalism held that the only justification for the Court reviewing and overruling the decisions of […]