The counter‐majoritarian and anti‐democratic nature of the federal court system was originally intended to act as a safeguard for the rights of minority groups.
A common complaint about courts in the United States, particularly at the federal level, is that they are “anti‐democratic.” This has sometimes been described as the “counter‐majoritarian difficulty,” a term coined by Alexander Bickel, a professor at Yale Law School, in his 1962 book The Least DangerousBranch. The perception is that courts are undemocratic because they often undermine majority rule by declaring that the acts of the other branches of government, which are democratically elected, are unconstitutional. Judges, on the federal level, at least, are not elected to the office, while legislators are, so a judicial decision that invalidates a popularly created law is going against the will of the people and is thus anti‐democratic.
Adherents of the view that the court system suffers from a “counter‐majoritarian difficulty” span the political spectrum. Oliver Wendell Holmes, Jr., the progressive Supreme Court Associate Justice of the late 19th through early 20th centuries, was a strong advocate for judicial deference to legislative decisions because it furthers the popular will and that the law should reflect majoritarianism, an argument that he made in his dissent in Lochner v. New York. Meanwhile, Robert Bork, a judge on the U.S. Court of Appeals for the D.C. Circuit and a rejected nominee of President Ronald Reagan to the Supreme Court would prove to be hugely influential on conservative legal thought, made similar arguments to Holmes. This has held in more recent years as well.
Chief Justice John Roberts has expressed support for judicial deference during his time on the court, such as his opinion in NFIB v. Sebelius, the case which upheld the constitutionality of the Affordable Care Act, and his dissenting opinion in Obergefell v. Hodges, the case which held that the right to marry must be extended to same‐sex couples. Justice Antonin Scalia also argued in his dissent in Obergefell that the Court’s ruling that the fundamental right to marriage must be extended to same‐sex couples unduly interfered with the democratic process. Justice Elena Kagan criticized the Court for overriding democratic majorities in her dissent in Janus v. AFSCME, in which the Court held that public‐sector unions could not charge fees to non‐members under the First Amendment. Commentators on both the left and the right, from Ezra Klein of Vox to Rich Lowry of the National Review, have also criticized the Court as undemocratic.
However, lamenting that the federal judiciary does not reflect majoritarian preferences misses the purpose of the judiciary branch. Not only is the purpose of the judiciary not necessarily to reflect the will of the majority, but one of the most important purposes of the judiciary is that it protects politically disfavored minorities against majority abuse. The “counter‐majoritarian difficulty” is no difficulty at all. It is instead, as an ideal if not always the reality, a key feature of the constitutional system of the United States that ensures that courts are effective defenders of individual rights.
Article III of the U.S. Constitution, which governs the power of the judicial branch, is counter‐majoritarian by nature. Article III is structured to ensure judicial independence. Judges appointed under Article III serve for life, so long as they have good behavior and commit no high crimes are misdemeanors, and their salaries may never be reduced during their time in office. These measures ensure the judiciary’s independence from the executive and legislative branches, which are much more prone to direct political pressure because they are elected by the people. Article III judges are appointed, so they are at least somewhat insulated from the direct desires of the majority. A life tenure and a salary that cannot be reduced shield them from threats by the other two branches.
Concerns about judicial independence weighed heavily on the minds of the Founding generation. In Federalist No. 78, Alexander Hamilton argued that the good behavior standard is an excellent safeguard against “the despotism of the prince” in a monarchy and against “the encroachments and oppressions of the representative body” in a republic. Hamilton also noted that judicial independence and judicial review provide protection from the tyranny of the majority. He observed that the “ill humors of society” can sometimes lead to the enactment of “unjust and partial laws” to target certain groups of citizens. Indeed, Hamilton encountered this himself early in his legal career when the state of New York passed laws designed to punish British loyalists. Judges can not only mitigate the harm of such laws in the short term through judicial review. They can also discourage legislatures from attempting to pass them in the future. Meanwhile, Federalist No. 51, which was written by either Hamilton or James Madison, dealt with the system of checks and balances in the government of the United States. The author argued that each branch should serve to check the powers of the other two. This included checks by the judiciary against the powers of the legislature and executive. Concerns about judicial independence were not limited to the Federalist Papers, either. The dependence of judges upon King George for their tenure and salaries was one of the grievances listed by Thomas Jefferson in the Declaration of Independence. Additionally, Article XXIX of the Massachusetts Declaration of Rights, drafted by John Adams, provided for the independence of judges in explicit terms.
The tyranny of the majority was, in fact, a major concern of the Founders, which resulted in the decision to structure the United States government with power divided among the executive, legislature, and judiciary. John Adams raised concerns about the majority wielding its power against political minorities in his Defence of the Constitutions of Government of the United States when arguing against a unicameral legislature holding political power. He instead preferred the system of mixed government that we have now. In Federalist No. 10, Madison raised concerns about majority factions that were unfriendly to the rights of the minority when arguing for the advantages of a republic over a pure democracy.
These concerns by the Founders turned out to be justified. The institution of slavery represents a prominent early example of the tyranny of the majority, with the black minority being enslaved by and with the support of the white majority from before the foundation of the United States, in what remains the greatest failure of the United States to uphold its founding ideals. Similarly, the Jim Crow laws in the post‐Civil War South also involved a white democratic majority wielding power to oppress the black minority. This trend would continue with eugenics laws in the late 19th and early 20th centuries as well as restrictions on the rights to sexual privacy and unequal treatment with respect to marriage benefits for LGBT individuals. Despite the best efforts of the Founders, the tyranny of the majority has often held sway during this country’s history. As the French political scientist Alexis de Tocqueville argued in his work Democracy in America, majorities in the United States not only wield a significant amount of political power, since the government is responsive to the majority will, they also wield a huge degree of power over thought. Since the majority is perceived to have the right to make and execute the law. This can often lead to the violation of the rights of minority groups.
Indeed, for all of the hand‐wringing that the Supreme Court, as well as the judicial branch overall, the court system has often failed to provide the promised safeguard against majority tyranny. Many of the Court’s most infamous decisions have involved upholding laws that were created by democratically elected governments but simultaneously acted to restrict the rights of disfavored minorities.
One prominent example is the infamous 1896 case Plessy v. Ferguson. The law at issue in the case was a Louisiana statute that required separate railway cars for black and white people. After a black individual attempted to sit in a train car designated for white people and was ejected and imprisoned, his lawyers argued that the law violated the Thirteenth and Fourteenth Amendments of the Constitution. The Fourteenth Amendment ensures that no state may “deny to any person within its jurisdiction the equal protection of the laws.” The Court dismissed the Thirteenth Amendment claim, arguing that it simply banned slavery and involuntary servitude. It then turned to the Fourteenth Amendment issue. Ignoring the reality of segregation in the South and a spirited dissent by Justice John Harlan, the Court argued that as long as the law was not designed to oppress a particular class of people, it was acceptable, and upheld the constitutionality of the law. This ignored the truth of racial segregation in the South, which was, in actuality, highly oppressive. The Court in Plessy ultimately acted as little more than a rubber stamp for the democratic white majority to oppress a disfavored minority group.
Another notable example of a heavily condemned Supreme Court decision that involved upholding the oppressive desires of a democratically elected majority occurred in 1927, with the case of Buck v. Bell. The case dealt with a Virginia law authorizing the forced sterilization of the intellectually disabled in the name of eugenics. The Virginia government argued that a woman by the name of Carrie Buck, as well as her mother and daughter, were “feeble‐minded” and that therefore Buck needed to be sterilized. Leaving aside the fact that neither Carrie Buck nor her mother or daughter suffered any such impairment, and that the allegations of her disability were an attempt to cover up her rape at the hands of a family member, and leaving aside that her lawyer, in the case committed one of the most egregious examples of legal malpractice in American history by sabotaging her case to ensure that the eugenics law survived, the law represented a major threat to the rights to bodily autonomy and to bear children and it represented a clear example of a democratic government abusing an unpopular minority, in this case those alleged to be intellectually disabled. The Court ruled that the law did not violate the Fourteenth Amendment. The author of the opinion, Justice Oliver Wendell Holmes, Jr., in his enthusiasm for both eugenics and majoritarianism, held that “public welfare” concerns outweighed Carrie Buck’s right to not be sterilized and gloated that “three generations of imbeciles are enough” when condemning her to sterilization. Majoritarianism ultimately proved to be a major impetus behind the Court’s decision to uphold the constitutionality of forced sterilization laws.
Conversely, some of the Court’s most celebrated decisions have involved holding that laws enacted by majorities are unconstitutional and stopping majority abuse.
De Tocqueville cited judges as a key force providing a check on majority tyranny in Democracy in America. The Court certainly has a mixed record when it comes to protecting minority rights. However, the Court has often been effective at combating the tyranny of the majority in a number of key decisions, rather than bending over backwards to accommodate majority rule.
One prominent example of the Court protecting minority rights occurred in 1925, in the case Pierce v. Society of Sisters. At issue in the case was the Oregon Compulsory Education Act, which required parents to send their children to public school. Although facially neutral, the law prohibited Roman Catholics, who were an unpopular political minority at the time, from sending their children to Catholic schools and instead required them to send them to public schools, which favored Protestantism. The motive behind the law was an anti‐Catholic sentiment, which is why it was supported by the Protestant majority, as well as the Ku Klux Klan. The Court, fortunately, held that the law was unconstitutional. It held that a child is not a “mere creature of the state” and that parents, including Catholic parents, had the power to make choices about their children’s education. It was thus able to protect the right of the Catholic minority to protect their children from indoctrination by the Protestant majority.
Meanwhile, one of the most notable examples of the Court successfully combating the tyranny of the majority, as well as one of the most celebrated, is the 1954 decision in Brown v. Board of Education, of Topeka, which partially overruled Plessy. At issue in Brown was racial segregation in public schools in Topeka, Kansas, which came to a head after the public school district refused to allow a black student to attend the school closest to her home, instead of requiring her to attend a segregated black school that was farther away. Her family and several others sued the Topeka Board of Education, arguing that the segregation policy was unconstitutional. The Court, in one of the most important victories of the Civil Rights Movement, held that racial segregation in public schools was unconstitutional under the Fourteenth Amendment. Notwithstanding support for racial segregation at the time and the implementation of segregationist policies by elected majorities, the Court ultimately held that state segregation violated the constitution. Therefore, it played a key role in one of the most celebrated efforts to end oppression by a majority group against the minority.
Yet another argument in favor of deference to majorities argues that deference is important because it empowers legislatures to respond to the important policy needs. However, courts that are overly deferential to legislatures are also unable to stop unconstitutional legislation that can potentially cause significant harm to minority rights. A powerful legislature without a judiciary to keep it in check can be beneficial to people, but can also be abusive to minorities. Finally, another major argument in favor of judicial deference to democratic majorities is that the Founders intended to protect not only individual rights but also democratic self‐government. However, this neglects the importance that the Founders placed on the protection of liberty from all forms of tyranny, including the tyranny of the majority. Although the Founders may have regarded popular sovereignty as an important way to protect individual rights, they were also cognizant of the threat that a popular majority could pose to minority rights. Popular sovereignty may have been a major concern for the Founders, but they recognized that majoritarianism unchecked by the judiciary would threaten the liberty that they fought so hard for.
Although the Supreme Court may be counter‐majoritarian and undemocratic, this is a major feature of the American constitutional system, preventing majorities from running roughshod over the rights of politically disfavored minority groups. Although the Court has certainly failed to provide a check against the tyranny of the majority in the past, some of its finest hours have involved stopping the oppression of minorities by democratically elected governments. The so‐called “counter‐majoritarian difficulty” is no difficulty at all, but rather an important safeguard against rights violations.