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3. A majoritarian basis for judicial countermajoritarianism.

Author

Rogers, James R. and Ura, Joseph Daniel

Subjects
*JUDICIAL power, *JUDICIAL review, *JUDGE-made law, *LEGISLATIVE bodies
Abstract

Judicial protection of disfavored minorities against oppressive legislation in majoritarian separation-of-power systems raises a puzzle: Why don't legislative majorities enacting discriminatory legislation curb judicial power when judges use their power to protect minorities and stymie the legislation? We answer this question by showing that judicial protection of disfavored minorities 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 protection 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 legislatures even when those judges protect minorities that popular majorities want to oppress. [ABSTRACT FROM AUTHOR]

Published
2020
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4. The Majoritarian Basis of Judicial Countermajoritarianism.

Author

Rogers, James R. and Ura, Joseph Daniel

Subjects
*JUDICIAL review, *MINORITIES, *LEGISLATIVE bodies, *JUDGES, *CORRUPTION
Abstract

"Prejudice against discrete and insular minorities" is a "special condition" that allows heightened judicial scrutiny of legislation aimed at "particular religious ... national ... or racial minorities" (US v. Carolene Products Co., n.4, 1938). This aspiration, however, leads to a puzzle regarding the ability of judges to protect minorities in separation-of-power systems: Why don't legislative majorities choose to curb courts that prevent the implementation of legislation when those majorities have tools to do so? We argue that judicial protection of minorities emerges as an unintended by-product of majoritarian politics. Popular majorities support judicial review because courts provide protection from corrupt legislatures. This position is supported by evidence from a controlled experiment showing that respondents' evaluations of the Supreme Court relative to Congress are increased by reports of congressional corruption, news of judicial decisions that conform to subjects' preferences, and an interactive effect between these two treatments. [ABSTRACT FROM AUTHOR]

Published
2012

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