Judicial Review as a Limit on Government Domination: Reframing, Resolving, and Replacing the (Counter)Majoritarian Difficulty

Abstract

For centuries, politicians, activists, and academics have criticized the American system of judicial review as democratically illegitimate. In response, dozens of scholars have striven to justify the institution’s place in a democratic political system. A compelling justification for judicial review must provide a realistic description of its function and a normatively attractive understanding of that function. Unfortunately, the most prominent justifications suffer from empirical or theoretical problems. However, recent empirical evidence suggests an “acquittal theory” that meets both criteria. On this view, courts armed with judicial review can thwart majority will by relieving individuals from government sanctions, but they lack the power to independently impose sanctions. This asymmetry suggests a resolution to the countermajoritarian difficulty that does not rely on judicial wisdom or behavior: the nature of judicial power ensures that judicial review reliably promotes a core democratic value—freedom from government domination—without seriously threatening other democratic values.