Tag: Supreme Court

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 […]

What’s wrong with the discourse of norm erosion?

We’ve now had, in less than 20 years, two presidents elected over and against the expressed preferences (not in a poll, but in actual ballots) of the majority of the voters. I think most Democrats, liberals, and leftists would agree that both of these presidents were or are disasters. So these two elections were democratic catastrophes on both procedural and substantive grounds. Yet the single most important determinant of these two disasters—the fact that we have a Constitution that creates an Electoral College that privileges the interests of states over persons—cannot, by the terms of the discourse, be counted as a norm erosion. Indeed, when it comes to this main determinant of the Electoral College and how it works, there […]