A majoritarian basis for judicial countermajoritarianism
| DOI | 10.1177/0951629820927784 |
| Author | James R. Rogers,Joseph Daniel Ura |
| Published date | 01 July 2020 |
| Date | 01 July 2020 |
| Subject Matter | Articles |
Article
Journal of Theoretical Politics
2020, Vol.32(3) 435–459
ÓThe Author(s) 2020
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DOI: 10.1177/0951629820927784
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A majoritarian basis for judicial
countermajoritarianism
James R. Rogers
Department of PoliticalScience, Texas A&M University, USA
Joseph Daniel Ura
Department of PoliticalScience, Texas A&M University, USA
Abstract
Judicial protection of disfavored minorities against oppressive legislation in majoritarian
separation-of-power systems raises a puzzle: Why don’t legislative majorities enacting discrimina-
tory legislation curb judicial power when judgesuse their power to protect minorities and stymie
the legislation? We answer this question by showing that judicial protection of disfavored minori-
ties can emerge as an unintended by-product of majoritarian politics. We develop a model that
includes the two aspects of judicial review Alexander Hamilton discusses in The Federalist No. 78:
Judicial protection of disfavored minorities against hostile popular majorities, and judicial protec-
tion of majority interests against legislative depredation. It is the institutional linkage between
these functions that induces popular majorities, within limits, to side with judges against legisla-
tures even when those judges protectminorities that popular majorities want to oppress.
Keywords
Countermajoritarianism; judicial review; legislatures; minority protection; separation-of-powers
1Introduction
Why do judges in majoritarian separation-of-power systems, such as those in US
state and national governments, ever accord protection to minorities against hostile
majorities? The traditional answer, that the USA has an independent judiciary that
Corresponding author:
James R. Rogers, Departmentof Political Science, TexasA&M University, MS 4348, College Station,TX
77845-4348, USA.
Email: james-r-rogers@tamu.edu
allows judges to do what they want without fear of political retribution, is insuffi-
cient. After all, US legislatures have a number of means by which to respond to
uncooperative judges, even beyond impeachment.
1
While a romantic view of the
US judiciary sees judges as heroic protectors of unpopular minorities against
majority-supported legislative oppression, in fact, judicial countermajoritarianism
presents a deep puzzle in majoritarian separation-of-powers systems (Friedman,
2002; Hall and Ura, 2015).
In providing a solution to this puzzle, this article contributes to the literature in
three ways. First, we identify a mechanism by which popular majorities will support
minority-protecting judges despite majority preferences hostile to minority rights.
In doing so, our analysis contributes to the separation-of-power literature in which
voters protect judges against legislative discipline. In the existing literature in which
voters protect judges by threatening to vote against legislators who would discipline
judges (see e.g. Vanberg, 2001), popular support for courts is typically exogenous to
the model. Our model accounts for why popular majorities would choose to protect
countermajoritarian judges d espite the judges’ protection of mino rities.
Second, our account contributes to the very large literature in law and political
science devoted to the ‘countermajoritarian problem.’ The scholarship on this topic
is so extended that Barry Friedman terms it an academic ‘obsession’ (Friedman,
2002). Existing formal literature of judicial autonomy in separation-of-power sys-
tems with voters, courts, and legislatures, while significant in its own right (see, e.g.
Stephenson, 2004), does not directly speak to the countermajoritarian problem
itself. More broadly, this article contributes to the substantive literature on coun-
termajoritarianism by providing a novel account of the interplay between popular
majorities, majoritarian legislators, and minority-protecting judges.
The third contribution of our analysis is less normatively sanguine than the first
two. Our analysis shows the ability of judges to protect unpopular minorities in the
face of majoritarian hostility is a narrow-run thing. While we account for the puzzle
of why judges would ever protect disfavored minorities in majoritarian separation-of-
power systems, we also show that plausible tipping points exist under which judges
would refuse to intervene to protect unpopular minorities against majority oppres-
sion. In doing so we provide a fully specified formal account of what Rosenberg calls
the US judiciary’s ‘hollow hope’ (1991, cf. Graber, 1993) in which judicial protection
of unpopular minorities is much more contingent than the romantic picture of judicial
countermajoritarianism portrays it to be. The model identifies how the interaction of
courts, legislatures, and voters both creates space for judicial protection of minority
rights in the face of majoritarian preferences for minority oppression and also identi-
fies practical boundaries on the protection judges can provide to minorities.
The broad arc of our story is this: We identify intuitive conditions under which
popular majorities conditionally support judicial review that monitors and disci-
plines legislative majorities. In this role, judges decrease the probability that legisla-
tors use their authority to serve themselves at the expense of the interests of the
popular majority. Because of this service to majoritarian interests, popular majori-
ties willingly accept some minority-protecting judicial countermajoritarianism as
the cost of judicial monitoring. In turn, popular support for courts constrains
436 Journal of Theoretical Politics 32(3)
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