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Friday, August 17, 2012

Goodreads | Eric_W Welch (Forreston, IL)'s review of The Least Dangerous Branch: The Supreme Court at the Bar of Politics

Goodreads | Eric_W Welch (Forreston, IL)'s review of The Least Dangerous Branch: The Supreme Court at the Bar of Politics:

 "There is a very interesting series of articles on the impact Bickel has had, especially his “counter-majoritarian difficulty” written by a selection of liberals, libertarians, and conservatives at SCOTUSblog. I'll link to one, from there you can find the rest."

What role the judiciary should play on a democratic society has been the subject of debate for centuries. Most of us with a passing knowledge of landmark decisions thought Marshall had pretty much settled the issue in Marbury v Madison and McCullough v Maryland when he established the principle we now call judicial review which grants to the judiciary the right to declare legislative acts unconstitutional.  That power, when applied, most egregiously in decisions like Dred Scott and Plessy and even more controversially, Lochner, gives pause to democrats who believe that the legislature embodies the will of the people and shouldn't be contradicted by a tiny group of non-elected judiciocrats. The argument for judicial restraint, so much in favor now on the Borkian conservative side, appears useful only when you disagree with whatever judicial philosophy holds sway on the court that results in outcomes you disagree with.

Bickel, apparently, began a reexamination in academic legal circles, of the principle of judicial review. This was followed by Robert Bork's article promoting what we now call originalism as a way to define the role of the judiciary in a democratic society.

Whether democracy inherently means majority rule and because of that the court must adhere to the wishes of the majority through the legislature is an argument I'm not prepared to defend. It certainly makes for an interesting discussion and one wonders whether it was at the back of the mind of Justice Roberts in his recent  decision upholding the individual mandate.

Cherminsky argues in his article that the Constitution itself is anti-democratic and thus hardly majoritarian, for example the Electoral College and only one branch is directly elected, the House of Representatives.  He suggests that a system that avoids having justices make value judgments is impossible and therefore theory must focus on those underlying values. As an example he cites Heller and MacDonald gun rights cases where both the majority and dissent focused on what people thought in 1791 rather than what might be a compelling legitimate government interest.

Other books that might be of interest:  Democracy and Distrust by John Hart Ely and Cosmic Constitutional Theory by J. Harvie Wilkinson, both cited by Cherminsky in the above article.

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