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Judicial deference to elected legislatures and executives on questions of constitutionality is motivated, in part, by a belief that unelected judges should not interfere with the application of the people's political authority by their elected representatives. This view assumes that unelected judges are unrepresentative of the people and that elected officials are faithful agents of their constituents. Canonical and contemporary research in political science, though, challenge these assumptions. The "regime politics" perspective proposes judicial majorities are typically partners in a national governing coalition and that judicial decisions--even those that invalidate or narrowly interpret laws created by elected institutions--tend to advance the interests of legislative majorities and the voters who support them. More recent "popular agency" theories of judicial power claim electoral majorities may make common cause with unelected judges in ways that stymie the political goals of elected representatives. This Essay describes these two perspectives on the relationship between majoritarian politics and judicial power and describes some of their implications for the problem of judicial deference. I argue first the regime politics view of judicial power suggests normative concerns about judicial deference to the political branches of government is misplaced. Meaningful and independent judicial scrutiny of legislative and executive policy making is foreign to a system in which courts, Congress, and president are members of the same team. In contrast, I argue the popular agency view of judicial independence suggests that courts' latitude to independently interrogate policy making by the elected branches of government will vary, in part, as a function of the public's perception of their elected representatives' trustworthiness. I conclude by identifying some political factors that may support diminished judicial deference to the choices of elected legislatures and executives in some cases. [ABSTRACT FROM AUTHOR]

Objective: To inform international discourse about judicial countermajoritarianism, we assess whether decisions enhancing gay rights by Canadian courts increase the media's attention to homosexuality and related topics. Method: We first collect a data set of monthly counts of relevant articles published in two prominent Canadian newspapers and then estimate Markov‐switching models to evaluate whether increases in media attention to homosexuality are coincident with judicial decisions enhancing gay rights in Canada. Results: Each of five landmark gay rights decisions is coincident with a period of heightened media attention to homosexuality. The data show that Canadian newspapers publish nearly twice as many relevant stories during these "active" regimes compared to "inactive" periods. Conclusion: Canadian courts can increase attention to issues in the national media. This result supports a dynamic view of the interaction between courts and democratic majorities in place of the static view of democracy endemic to normative discourse about judicial countermajoritarianism. [ABSTRACT FROM AUTHOR]

For decades, constitutional theorists have confronted the normative problems associated with judicial review by an unelected judiciary; yet some political scientists contend that judicial review actually tends to promote majoritarian interests. We evaluate the majoritarian nature of judicial review and test the political foundations that shape this process. To do so, we construct a statute-centered data set of every important federal law enacted from 1949 through 2008 and estimate the probability of a law being challenged and subsequently invalidated by the Supreme Court. Our methodological approach overcomes problems of selection bias and facilitates a test of judicial majoritarianism and the mechanisms that drive that behavior. We find that the Court tends to invalidate laws with little support from elected officials and that this pattern is primarily driven by the justices' concern for congressional constraint during the certiorari stage. [ABSTRACT FROM AUTHOR]