Majoritarian Judicial Review: Deference and the Political Construction of Judicial Power.

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]