bassok & doan solvingfinalicon

ICON (2013), Vol. 11 No. 1, 1333 doi:10.1093/icon/mos047

The Author 2013. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: [email protected]

Solving the countermajoritarian difficulty ?

Or Bassok* and Yoav Dotan**

For many years, scholars have attempted to justify the US Supreme Courts countermajori-tarian judicial review authority. In recent years, several scholars have attempted instead to dissolve the countermajoritarian difficulty, claiming based on empirical evidence, that the Supreme Courts decisions are usually in sync with public opinion. We adopt a third and novel path in tackling this long-debated normative difficulty. We acknowledge that the Court, at times, acts in a countermajoritarian fashion. However, based on empirical evidence that demonstrates the enduring public support for the Court and the wide acceptance of its judi-cial review authority by all relevant players, we argue that the countermajoritarian diffi-culty is partly solved. Our solution is not based on a pre-commitment taken at the time the Constitution was created or on a mere fictitious act that is part of a thought experiment. Rather, it is based on an ongoing acceptance of, and support for, judicial review as a mech-anism to constrain the publics immediate preferences.

Introduction The American Supreme Courts most prominent normative difficulty, the counter-majoritarian (CM) difficulty, captures two fundamental aspects of democratic gov-ernment: majoritarianism and electoral accountability.1 The majoritarianism aspect presents the difficulty of an unelected Court that rules in a specific controversy against the current majority thus literally countering the majority will. Our article offers a solution to this aspect of the difficulty. We argue that the majority of the American public has accepted the CM judicial constraints. While the public sometimes opposes

* Robina Foundation Visiting Human Rights Fellow, Yale Law School. Email: [email protected].** Edwin A. Goodman Professor of Law, Faculty of Law, Hebrew University of Jerusalem. Email: msdotan@

mscc.huji.ac.il. For their invaluable comments and suggestions, we wish to thank Shai Dothan, Sebastin Elias, Noam

Y. Finger, Alon Harel, Hlne Landemore, Shay Levi, Barak Medina, Robert Post, Reem Segev, and par-ticipants at the Yale JSD Colloquium and the Public Law workshop at the Hebrew University.

1 Robert A. Dahl, Can International Organizations be Democratic? A Skeptics View, in The CosmopoliTanism ReadeR 423, 423 (Garret Wallace Brown & David Held eds., 2010) (arguing that democracy as a system of popular control means responsiveness and accountability to the demos).

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specific judgments, the majority of the public and its representatives accept, at the same time, the Courts binding review-power.

We begin our discussion with a short analysis of the two aspects of the CM diffi-culty. In the second section, we survey the two major ways in which the CM difficulty was confronted by scholars. We do not purport to offer an exhaustive survey of these attempts to justify the Courts CM authority or to dissolve it, nor do we attempt to evaluate the cogency of these attempts. Our sole purpose is to situate our solution to the majoritarianism aspect of the CM difficulty within the scholarly arena. Next, we present empirical studies demonstrating that the Court holds a reservoir of public support. We also survey other works that show that the public and its representatives accept judicial review over legislation. Based on these data, we present our solution which attributes moral legitimacy to the Courts CM judicial review authority based on sociological legitimacy.2 Before concluding, we discuss in the fourth section several difficulties our solution raises.

1. The two aspects of the CM difficultyThe literal understanding of the CM difficulty emphasizes the majoritarian compo-nent of democracy, i.e., the correspondence with the aggregated preferences of the populace.3 When the Court rules in a specific controversy against the current majority as quantified by polling, it acts counter to the majority will thus acting in a literally CM fashion. The traditional understanding of the CM difficulty emphasizes electoral accountability as the focus of the difficulty, i.e., the problem with justices striking down statutes that are the fruits of electorally-accountable branches.4

These two aspects are obviously connected. Electorally accountable institutions are sensitive to majoritarian preferences.5 Yet there is still a difference between the two understandings. When the Court overrules legislation that the majority of the public, as measured in public opinion polls, opposes, the Courts decision is not CM in the literal sense since the public supports the decision.6 However, it is still CM in the traditional

2 See Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 haRv. l. Rev. 1787 (2005) (distinguishing between sociological legitimacy and normative legitimacy).

3 See, e.g., Barry Friedman, Mediated Popular Constitutionalism, 101 miCh. l. Rev. 2596, 2596 (2003) (At bottom [countermajoritarian] often seems to be a claim, and perhaps must be a claim, that when judges invalidate governmental decisions based upon constitutional requirements, they act contrary to the pref-erences of the citizenry.).

4 See, e.g., John haRT ely, demoCRaCy and disTRusT 45 (1980) ([T]he central function, and it is at the same time the central problem, of judicial review: a body that is not elected or otherwise politically responsible in any significant way is telling the peoples elected representatives that they cannot govern as theyd like.); daniel a. FaRbeR & suzanna sheRRy, JudgmenT Calls xi (2009) (The countermajoritarian difficulty refers to the supposedly anti-democratic nature of judicial review, since it allows courts to overturn the handiwork of elected officials.).

5 See miChael J. peRRy, The ConsTiTuTion, The CouRTs, and human RighTs 170 n. 4 (1982); Julian N. Eule, Judicial Review of Direct Democracy, 99 yale l.J. 1503, 1532 (1990).

6 naThaniel peRsily, JaCk CRiTin, & paTRiCk J. egan, publiC opinion and ConsTiTuTional ConTRoveRsy 5 (2008) (After all, if the Court merely reflected public opinion in its decisions, then whatever other problems it might have, it could not be described as countermajoritarian.).

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Solving the countermajoritarian difficulty 15

sense since an unaccountable institution thwarted the will of an accountable institu-tion. In other words, an unelected court that enjoys public support and whose decisions are in line with public opinion still raises the CM difficulty in its traditional sense when it reviews legislation, because it is electorally unaccountable.7 In this article we offer a solution or an answer only to the majoritarian aspect of the CM difficulty.

2. Confronting the Courts CM authority

2.1. Justifications

For many years, scholars have focused on suggesting normative justifications for the Courts CM authority. However, they did not usually examine whether the justification they proposed addressed one or both of the aspects captured by the CM difficulty.

These justifications usually consist of two stages. First, the scholar would explicate a worthy normative vision or goal which can be extracted from the Constitution.8 For example, several scholars have identified a constitutional commitment to freedom, or to equality or to the full humanity of every member of society as standing at the basis of the Constitution.9 Other scholars have claimed that preserving fundamental val-ues is not an appropriate constitutional task.10 Thus, they claimed that no value is inherently entrenched except the procedural process of political majoritarianism.11 Whatever normative goal one extracts from the constitution, justification-based approaches profess that the chosen normative goal sets the right constitutional course for the United States from which the People should be prevented from straying, even if their immediate desires direct them to do so.

Second, the scholar would explain why the function of securing societys adher-ence to this course is peculiarly suited to the capabilities of the courts, and will not likely be performed elsewhere if the courts do not assume it.12 In other words, scholars who justify the Courts CM authority ascribe the Court some special property that makes it the institution that is best fit to ensure societys adherence to the right constitutional course.13 They explicate why an unaccountable institution that may at times act against the majoritys opinion, is best equipped to achieve the desired goal. For example, several scholars hold that due to their special training or their relative

7 For further analysis of the differences between the two difficulties, see Or Bassok, The Two Countermajoritarian Difficulties, 31 sT. louis u. pub. l. Rev. 333 (2012).

8 See, e.g., bRuCe aCkeRman, We The people: FoundaTions 11 (1991) (describing the common thread of Rights Foundationalists).

9 See Michael J. Perry, Protecting Human Rights in a Democracy: What Role for Courts, 38 Wake FoResT l. Rev. 635, 638639 (2003); Jeremy Waldron, A Rights-Based Critique of Constitutional Rights, 13 oxFoRd J. leg. sTud. 18, 20 (1993).

10 See, e.g., ely, supra note 4, at 88.11 See, e.g., id. at 181 (judicial review can appropriately concern itself only with questions of participation,

and not with the substantive merits of the political choice under attack.).12 alexandeR m. biCkel, The leasT dangeRous bRanCh 24 (1962).13 See, e.g., ChRisTopheR l. eisgRubeR, ConsTiTuTional selF-goveRnmenT 13 (2001) (Most scholars and judges

assume that the Courts power is justifiable (if at all) on the basis of its special legal expertise. . . . This view is common ground among people who disagree radically about the nature of legal craftsmanship.).

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insularity from public opinion (or both), judges enjoy some institutional advantages over legislators with respect to the process of discovering, asserting, and implement-ing human rights.14 Other scholars claim that courts are inferior to legislators in mak-ing substantive judgments, but their institutional perspective as political outsiders makes their judgments about fair process superior.15 Hence, according to all of these attempts to justify the Courts CM authority, the Courts normative legitimacy is based on its expertise rather than on the peoples consent.16

2.2. The dissolution of the CM difficulty in its literal sense

In 1957, Robert Dahl demonstrated, based on empirical data, that Supreme Court was rarely out of line with the policies of nations lawmaking majorities.17 Since the mid-1980s, a trickle of empirical studies, that later became a flood, has compared poll-ing results about salient topics with Supreme Courts decisions.18 These studies have shown that the Courts constitutional decisions have by and large been in sync with public opinion.19 In his comprehensive studies of the relationship between the Courts decisions and public opinion, Thomas Marshall concluded that the modern Court appears to be as majoritarian as other American policy makers.20

During the last decade or so, these empirical findings have convinced many con-stitutional theorists that the Court is essentially a majoritarian institution: over time, it tends to reflect the majoritys opinion rather than thwart it.21 Even if a Court that

14 See, e.g., ChaRles blaCk, a neW biRTh oF FReedom: human RighTs, named and unnamed 125 (1997) (Human-rights claims are made in the name of the law, as the outcome of reasoning from commitment; judges are practiced in this kind of reasoning and some of them are expert at it. Emphasis in the original.). See also Alon Harel & Tsvi Kahana, The Easy Core Case for Judicial Review, 2(1) J. legal analysis 227, 232 (2010) (examining the view that judges are experts on rights).

15 Cf. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). See also, e.g., ely, supra note 4, at 7577, 75 n.*, 88, 102, and 112 (Elys theory, the pinnacle of the Carolene Products tradition, states explicitly that judges are experts on process and political outsiders, uniquely situated to impose the process-based values that stand at the center of the Carolene Products formula).

16 See david m. esTlund, demoCRaTiC auThoRiTy 34 (2008) (distinguishing between consent and expertise as bases for authority).

17 Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. pub. l. 279 (1957).

18 See, e.g., peRsily, CRiTin, & egan, supra note 6; David G. Barnum, The Supreme Court and Public Opinion: Judicial Decision-Making in the Post-New Deal Period, 47 J. pol. 652 (1985).

19 See, e.g., David Adamany & Stephen Meinhold, Robert Dahl: Democracy, Judicial Review, and the Study of Law and Courts, in The pioneeRs oF JudiCial behavioR 361, 372373 (Nancy Maveety ed., 2003); Terri Peretti, An Empirical Analysis of Alexander Bickels The Least Dangerous Branch, in The JudiCiaRy and ameRiCan demoCRaCy 123, 140 (Kenneth D. Ward & Cecilia R. Castillo eds., 2005) (Overall, the research refutes Bickels characterization of the Court as a countermajoritarian institution.).

20 Thomas R. maRshall, publiC opinion and The RehnquisT CouRT 3, 35, 5559 (2008). See also Thomas R. maRshall, publiC opinion and The supReme CouRT 7, 7881, 9798, 117, 192193 (1989) (Overall, the evidence suggests that the modern Court has been an essentially majoritarian institution. Where clear poll margins exist, three-fifths to two-thirds of Court rulings reflect the polls.).

21 See, e.g., baRRy FRiedman, The Will oF The people 364365, 371 (2009) ([A]s we have seen time and time again, their decisions plainly reflect the tug of public views.); Michael C. Dorf, The Majoritarian Difficulty and Theories of Constitutional Decision Making, 13 u. pa. J. ConsT. l. 283, 283 (2010) (Recent scholar-ship in political science and law challenges the claim that judicial review in the United States poses what Alexander Bickel famously called the counter-majoritarian difficulty.).

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is armed with judicial review powers is, as a matter of logic, a deviant institution in the American democracy,22 as a matter of historical fact, it fits comfortably into the democratic-majoritarian system.23 Thus, the CM difficulty in its literal meaning is dis-solved and exposed as a myth or an illusion since the Court is in fact a majoritarian institution.24

In recent years, many constitutional theorists have been occupied with examin-ing mechanisms that might explain the correlation between Courts decisions and majority opinion. The judicial appointment process is the mechanism perhaps most frequently invoked to explain the sync between the Courts adjudication and the posi-tions of the public.25 Justices tend to share the views of the public because they are picked and appointed by a popularly elected President with the approval of the major-ity of a popularly elected Senate.26 Another prominent mechanism is political back-lash. According to this mechanism when a backlash movement musters strong public support then, and only then, the Court capitulates to public opinion.27

However, even the most adherent advocates of the dissolution effort admit that judicial review does at times counter public opinion. They view these occasions as an unrepresentative glitch in the mechanism that ensures the general correlation with public opinion.28

3. Solving the CM difficulty

3.1. The Courts enduring public support and the publics acceptance of judicial review

Two related phenomena stand at the heart of our argument. The first is the wide acceptance of the Courts judicial review authority by both the public and its repres-entatives; the second is the publics enduring support for the Court despite its occasional

22 biCkel, supra note 12, at 18.23 Cf. Adamany & Meinhold, supra note 19, at 380 (raising a similar claim regarding Dahls claims).24 Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 va. l. Rev. 1, 56 (1996).25 See Richard H. Pildes, Is the Supreme Court a Majoritarian Institution?, 2010 supReme CouRT RevieW 103,

139140 (2010) (Indeed, most majoritarians rely centrally on this mechanism to explain how the Court purportedly comes to reflect national political majorities.).

26 See, e.g., Barry Friedman, Dialogue and Judicial Review, 91 miCh. l. Rev. 577, 612 (1993) (Although federal judges are not elected, they are appointed by Presidents who stand for popular election. Judicial appointments often mirror the popular will that elected a President.); Jack M. Balkin & Sanford Levinson, The Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State, 75 FoRdham l. Rev. 489, 490, 495, 501 (2006) (If the Court as a whole strays too often and too widely from the desires of the dominant forces in national politics . . . the appointment process soon pushes the Court back into line. The calibration is hardly perfect . . .).

27 See, e.g., FRiedman, supra note 21, at 362 (One of the greatest engines of constitutional change has been mobilization against Supreme Court decisions by those unhappy with the results.); id. at 369, 383.

28 See, e.g., id., at 382 (What history shows is assuredly not that Supreme Court decisions always are in line with popular opinion, but rather that they come into line with one another over time. Emphasis in the original.); Peretti, supra note 19, at 132 (While the Court does indeed often rule against majority opinion (about one-third of the time, according to Marshall), it more often sides with majority opinion. Emphasis in the original.).

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CM behavior. These phenomena capture public attitudes and beliefs regarding the legitimacy of the Court and its judicial review authority. Following scholarly litera-ture, we shall use the phrase sociological legitimacy as the general term that encom-passes public attitudes regarding the legitimacy of the Court.29

These two phenomena have different manifestations, and have been researched by different methods. But beyond the professional jargon elaborated below, for our pur-poses the important point can be summarized as follows. The majority of the pub-lic and the majority of elected representatives may at times disagree with a certain decision made by the Court or with the substantive policy reflected in its outputs. Nevertheless, the majority of the public still supports the Court, and judicial review is by and large accepted by the public and its representatives. Before presenting the data supporting these claims, we examine, in the next section, the metric used for measur-ing the publics enduring support for the Court.

(a) The metric for measuring enduring public support for the Court

The notion that the public supports the Court even when it objects to some of its deci-sions is perhaps best conceptualized by the distinction between specific and diffuse sup-port. In its narrowest meaning, specific support is defined as satisfaction with the immediate outputs of the institution;30 a more expansive view defines it as satisfac-tion with the performance of a political institution.31 Diffuse support, on the other hand, is a fundamental commitment to an institution and a willingness to support the institution that extends beyond mere satisfaction with the performance of the institution at the moment (specific support).32 Gibson and Caldeira argue that in measuring the fundamental and relatively enduring features of the publics orienta-tion towards the Court, the focus should be on the support for maintaining the institu-tion. According to this view, the Court enjoys high levels of diffuse support when most of the public objects to making fundamental structural and functional changes in the Court.33

29 See, e.g., Allen Buchanan & Robert O. Keohane, The Legitimacy of Global Governance Institutions, 20 eThiCs and inTeRnaTional aFFaiRs 405, 405 (2006) (An institution is legitimate in the sociological sense when it is widely believed to have the right to rule.); Fallon, supra note 2, at 1795 (When legitimacy is measured in sociological terms, a constitutional regime, governmental institution, or official decision possesses legitimacy in a strong sense insofar as the relevant public regards it as justified, appropri-ate, or otherwise deserving of support for reasons beyond fear of sanctions or mere hope for personal reward.).

30 James L. Gibson, Gregory A. Caldeira & Lester Kenyatta Spence, Measuring Attitudes toward the United States Supreme Court, 47 am. J. pol. sCi. 354, 356 (2003).

31 James L. Gibson & Gregory A. Caldeira, Blacks and the United States Supreme Court: Models of Diffuse Support, 54 J. pol. 1120, 1126 (1992); see also Gregory A. Caldeira & James L. Gibson, The Etiology of Public Support for the Supreme Court, 36 am. J. pol. sCi. 635, 637 (1992).

32 James L. Gibson, Public Images and Understandings of Courts, in: The oxFoRd handbook oF empiRiCal legal ReseaRCh 828, 837 (Peter Cane & Herbert M. Kritzer eds., 2010).

33 Caldeira & Gibson, supra note 31, at 637639 ([D]iffuse support is opposition to basic structural and functional change).

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At times, the public may disagree with a certain decision, or with the substantive policy reflected in the Courts outputs. This would reduce the publics specific support for the Court. However, the more durable diffuse support can transcend such reactions to the Courts concrete performance and remains unscathed.34 Only sustained disap-pointment with the Courts decisions can lead to a decline in the diffuse support that the Court enjoys.35

Several social scientists argue that the Courts enduring public support can be mea-sured by surveys that examine the publics confidence in the Court.36 Caldeira and Gibson, however, claim that the confidence metric conflates specific support and dif-fuse support.37 Nevertheless, public confidence does show some resilience to unpopu-lar decisions, since it remained relatively stable over the years, even in times when the Court has handed down unpopular decisions.38 Since public confidence is not completely contingent on satisfaction with the Courts immediate decisions, it can be viewed as positioned between specific and diffuse support on a continuum measuring the durability of public support.39 It is not merely a measure for short-term satisfac-tion with policy outputs but also a metric of more fundamental loyalty to the Court over the long-term.

(b) Data demonstrating the Courts enduring public support and the acceptance of judicial review authority

At least since the 1970s, the public, though disagreeing at times with specific judg-ments, has mostly awarded the Court with a steady and relatively high level of confi-dence.40 Based on the public confidence metric, scholars have shown that aggregate public support for the Court is stable and high,41 and that the Court has consistently

34 Id., at 636638; Friedman, supra note 3, at 26142617.35 James L. Gibson, Gregory A. Caldeira, & Vanessa A. Baird, On the Legitimacy of National High Courts, 92

am. pol. sCi. Rev. 343, 344, 351356 (1998) ([O]nly prolonged dissatisfaction would erode levels of diffuse support.).

36 See, e.g., Robert H. Durr, Andrew D. Martin, & Christina Wolbrecht, Ideological Divergence and Public Support for the Supreme Court, 44 am. J. pol. sCi. 768, 768769 (2000); Jeffery J. Mondak & Shannon I. Smithey, Dynamics of Public Support for the Supreme Court, 57(4) J. pol. 1114, 1116 (1997).

37 See Caldeira & Gibson, supra note 31, at 637; Gibson, Caldeira, & Spence, supra note 30, at 354357, 361, 363364 (public confidence picks up two types of variance: short-term satisfaction with the per-formance of the institution and long-term attachments to the institution itself. We tend to see the former source of variance as dominant but admit that the evidence is ambiguous.).

38 See Gibson, Caldeira, & Spence, supra note 30, at 355, 359 ([S]pecific policy disagreements with the Court do not directly erode overall satisfaction with the institutions performance.); Mondak & Smithey, supra note 36, at 11241125 (Public support for the Supreme Court tends to be both high and stableaggregate traits that seemingly reveal an institution largely insulated from short-term shifts in public preferences.).

39 Mondak & Smithey, supra note 36, at 1116 n.2.40 See, e.g., Gibson, Caldeira & Spence, supra note 30, at 355 tbl.1 (providing data on Confidence in the

Leaders of the U.S. Supreme Court from 1973 to 2000).41 Mondak & Smithey, supra note 36, at 11181119 (tracking public support for the Court from 1972 to

1994, and showing that it consistently exceeds support for the executive branch and Congress); Gibson, Caldeira, & Spence, supra note 30, at 355 (reporting data from 1973 until 2000 that shows public confi-dence in the Court is generally stable).

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been the most favored institution of government.42 Data also show that at least since 1987, the Court has enjoyed significant bedrock of diffuse support.43 Caldeira and Gibson summarize several of their studies by noting that the Supreme Court has enjoyed a fairly substantial reservoir of goodwill among the American people.44

These results, arrived at using different metrics, testify to one point that is crucial for our argument: while the Court acts, at times, in a CM manner, it enjoys public loyalty, not just approval. Though the majority of the public may at times disagree with Courts decisions, these CM decisions do not normally undermine the publics basic commit-ment to support the Court.45 Thus, we acknowledge that the CM difficulty in its literal sense does exist. Notable examples in which the Court maintained a CM stand even after learning of public disapproval include its flag-burning decisions46 and its school prayer decisions.47 Yet, while theorists who dissolve the CM difficulty demonstrate that, as a matter of fact, the Courts decisions remain within the publics zone of acquiescence,48 we argue that the public and its representatives accept and support the Court as an insti-tution that possesses a CM authority. As elaborated below, we further argue that this position has a normative consequence: it solves the CM difficulty in its literal sense.

The position that the Court has the final say in questions of constitutional meaning (a position known as judicial supremacy49) is accepted, if not assumed, by politicians and the general public.50 Yet, at times, institutional actors still resist

42 John R. hibbing & elizabeTh Theiss-moRse, sTealTh demoCRaCy: ameRiCans belieFs abouT hoW goveRnmenT should WoRk 99100 (2002); see also maRshall (1989), supra note 20, at 138141 ([T]he Court has consistently won more approval than Congress or the executive branch (at least since the 1970s).); FRiedman, supra note 21, 15 (The justices regularly outpoll the Congress and often even the President in terms of public support or confidence.), and 372.

43 Gibson, supra note 32, at 840841 (summarizing six surveys between 1987 and 2008).44 James l. gibson & gRegoRy a. CaldeiRa, CiTizen, CouRTs and ConFiRmaTions 38, 42 (2009); see also James L. Gibson

& Gregory A. Caldeira, Have Segal and Spaeth Damaged the Legitimacy of the U.S. Supreme Court?, 4 (July 4, 2009) (unpublished manuscript, available at http://papers.ssrn.com/ abstract=1436426) (The U.S. Supreme Court is a deeply legitimate institution.); Gibson, Caldeira, & Spence, supra note 30, at 360 (loyalty toward the Court is reasonably strong and widespread.) and 364.

45 Gibson, supra note 32, at 837843.46 Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990).47 Engel v. Vitale, 370 U.S. 421 (1962); Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963); see

also Lawrence Baum & Neal Devins, Why the Supreme Court Cares About Elites, Not the American Public, 98 geo. l.J. 1515, 15561560 (2010) (surveying the divergence between public opinion and the Courts decisions); Frederick Schauer, Judicial Supremacy and the Modest Constitution, 92 Cal. l. Rev. 1045, 1046, 10581059 (2004) (arguing that in issues such as school prayer, flag burning, child pornography, the regulation of indecency, and defendants rights, the Court acted in a CM manner in the literal sense).

48 See, e.g., FRiedman, supra note 21, at 373, 379; Klarman, supra note 24, at 1618.49 keiTh e. WhiTTingTon, poliTiCal FoundaTion oF JudiCial supRemaCy 58 (2007) (distinguishing between judi-

cial review and judicial supremacy).50 See, e.g., Larry D. Kramer, The Supreme Court, 2000 Term: Foreword: We, the Court, 115 haRv. l. Rev. 4,

67 (2001) (as a descriptive matter, judges, lawyers, politicians, and the general public today accept the principle of judicial supremacyindeed, they assume it as a matter of course.); Gibson, supra note 32, at 832 (reporting that in three surveys conducted in 2001, 2005, and 2008, 60.7%, 56.8%, and 53.8% of respondents, respectively, were aware that the Court has the last say when there is a conflict over the meaning of the Constitution); WhiTTingTon, supra note 49, at 5, 15, 23, 27 (despite occasional voices of dissent, crucial government officials have generally supported the judiciary and recognized its claim to being the ultimate interpreter of constitutional meaning.), and 28490 (demonstrating that only on relatively rare historical circumstances do presidents challenge judicial supremacy).

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this position.51 However, it is hard to find resistance to the CM authority of judicial review, at least in recent decades, even among institutional actors who are directly constrained by the Courts decisions.52 As Richard Pildes recently pointed out, the modern Congress typically treats the Court as the exclusive authority over constitu-tional issues.53

Indeed, apart from several contenders in the legal academia,54 the Courts author-ity to review the constitutionality of legislation is almost consensual.55 One indicator that led Caldeira and Gibson to conclude that the Court enjoys a high level of dif-fuse support came from a 1987 survey, in which a relatively high level of respondents expressed disapproval of the following assertion: the power of the Supreme Court to declare acts of Congress unconstitutional should be eliminated.56 Neal Devins asserts that citizens and lawmakers look especially to the Court to check Congress. For this reason, he further explains, Court decisions striking down federal statutes look more like exercises of delegated authority than like countermajoritarian judicial review.57 Barry Friedman summarizes that by and large, for now, the people are simply content with the system of judicial review.58

51 See, e.g., Edwin Meese III, The Law of the Constitution, 61 Tulane l. Rev. 979, 983 (1987) (asserting that Supreme Court rulings on issues of constitutionality do not establish a supreme law of the land that is binding on all persons and parts of government henceforth and forevermore).

52 See, e.g., Pildes, supra note 25, at 133 (It has been many generations since Congress retaliated against the Court through measures such as eliminating the Courts Term, expanding or shirking the size of the Court, impeaching a justice, or stripping the Court of jurisdiction over major areas.); Neal Devins, The Majoritarian Rehnquist Court? 67 laW & ConTemp. pRobs. 63, 6970 (2004) (titling a subsection: Members of Congress Support Independent, Scrutinizing Judicial Review of Federal Statues, and adding that todays Congress rarely casts doubt on either the correctness of the Courts ruling or, more fundament-ally, the Courts power to authoritatively interpret the Constitution.); Larry Alexander & Lawrence B. Solum, Popular? Constitutionalism?, 118 haRv. l. Rev. 1594, 1638 (2005) (book review) (The kind of constitutional work the Supreme Court does Term after Term, in case after case, is now overwhelmingly accepted by all of the branches of government and the citizenry at large.).

53 Pildes, supra note 25, at 147. See also Mark A. Graber, The Countermajoritarian Difficulty: From Courts to Congress to Constitutional Order, 4 annu. Rev. laW soC. sCi. 361, 364 (2008) (surveying several other indi-cation of elected representatives support of the Court and its judicial review authority).

54 See, e.g., maRk TushneT, Taking The ConsTiTuTion aWay FRom The CouRTs 154176 (1999).55 See, e.g., laRRy d. kRameR, The people Themselves: populaR ConsTiTuTionalism and JudiCial RevieW 227 (2004)

(The acceptance of judicial authority is most apparent . . . in the all-but-complete disappearance of pub-lic challenges to the Justices supremacy over constitutional law.); Neal Devins, Should the Supreme Court Fear Congress?, 90 minn. l. Rev. 1337, 1359 (2006) ([E]ven though some Supreme Court decisions trig-ger a backlash by those who disagree with the Courts rulings, the American people nonetheless support judicial review and an independent judiciary.).

56 Caldeira & Gibson, supra note 31, at 11281129.57 Devins, supra note 52, at 65; see also id. 73, 8081.58 FRiedman, supra note 21, at 371; see also Jesse H. ChopeR, JudiCial RevieW and naTional poliTiCal pRoCess 48

(1980) (judicial review has been institutionally adopted by continuing consensus of American society as an integral rule of the system.); FaRbeR & sheRRy, supra note 4, at 30 (Most people seem to approve the Supreme Court as an institution and approve of its constitutional role.); Kevin L. Yingling, Justifying the Judiciary: A Majoritarian Response to the Countermajoritarian Problem, 15 J.l. & pol. 81, 9496 (1999) (Significant evidence indicates that people prefer that the courts decide such constitutional disputes regardless of the substantive outcome. . . . [E]ven though the public does not always support the out-comes, they do support the entity which produces those outcomes. . . .).

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To summarize this section, despite some methodological and terminological dif-ferences among social scientists, there is a wide consensus among scholars that the American public and their representatives persistently accept and support the Courts CM institutional function.

3.2. Judicial review as a mechanism

The Constitution anchors a substantive thesis regarding the course that American society should follow. However, there is disagreement concerning the content of this thesis. As explained above, this dispute finds expression in the different justifications proposed for judicial review.59 In addition to the dispute regarding the substantive thesis directing the constitutional endeavor, a second kind of debate ensues over the day-to-day implications embedded in a particular substantive thesis. We can all agree that the Constitution anchors a liberal democracy that takes rights seriously,60 yet argue whether such a commitment implies that the government may require us to purchase health-care insurance. A third kind of debate could concern the question of what kind of review mechanism over legislation (if any) is required to ensure that American society continues in the right constitutional course.61

Choosing the right mechanism raises two issues. The first of these concerns the best means to achieve the desired result, the best way to ensure that the people are bound to the substantive goal. For example, one may claim that thin, procedural demo-cracy is the vision anchored in the Constitution.62 According to this line of thought, protecting basic democratic procedures may indeed justify some kind of legislation-review mechanism. As a matter of choosing the right mechanism, one may claim that it is better to entrust the review power in the hands of a second legislative chamber. Such a review mechanism will not force standards of legal logic on political peddling and logrolling, which are essential to the legislative process, and which do not hin-der democratic procedure. As a matter of choosing the most efficient mechanism for achieving the desired substantive goal, so the claim goes, judicial review will just be comparatively less efficient.

The second issue is the normative legitimacy of different mechanisms. The CM dif-ficulty is an example for a normative legitimacy problem of one such mechanism, i.e., judicial review.

Scholars who justify judicial review of legislation attempt to show that a world with judicial review is morally superior to a world without it. They argue that a review mechanism is instrumental in fostering certain valuable outcomes, such as the pro-tection of disadvantaged groups, the preservation of democratic procedures, or the assurance of certain basic moral values. Moreover, these scholars contend that the best review mechanism for achieving their constitutional goal is judicial since the

59 See supra section 2.1.60 Ronald dWoRkin, FReedoms laW 1617, 7278, 212216 (1996).61 Cf. Alexander & Solum, supra note 52, at 1630 (distinguishing between constitutionalism, which is not

problematic in terms of the CM difficulty, and the judicial mechanism that enforces it, which is).62 See, e.g., ely, supra note 4, at 87101.

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justices hold certain expertise or competence that allows them to ensure the fulfill-ment of the desired goal.

While no one doubts that the justices hold legal expertise,63 the exposure of the indeterminacy of legal norms, especially those at the focus of Supreme Court cases, undermined significantly the claim that legal expertise awards the Court with a spe-cial ability to discover the one correct answer in constitutional cases.64 In regards to questions of political morality that are the focus of Supreme Court cases, many scholars deny that the Court holds any relevant superior expertise or competence in comparison to other institutions.65 The CM difficulty is thus not merely a problem of unaccountable justices deciding contrary to majority will, but a problem of justices doing so without possessing any relevant superior ability or knowledge.66

But even if the justices have the relevant expertise that ensures that they will arrive at the correct legal and moral answer, it does not necessarily confer judicial review with normative legitimacy. Expertise, legal, moral or in policy issues, is not enough to normatively legitimate authority. Authority does not simply follow from expertise. In other words, [y]ou might be correct, but what makes you boss?67 This expert/boss fallacy occurs when one thinks that being an expert is sufficient basis for legiti-mating authority.68 There is no point in counting noses among the public regarding questions of expertise,69 yet the experts authority cannot be driven solely from her superior knowledge. [T]he doctors right to make decisions and perform procedures on us, David Estlund further explains, comes mainly from our consent, not from the doctors expertise.70

3.3. Solving the CM difficulty and legitimating the Courts CM authority

The CM difficulty is solved since the public and its representatives accept the Courts judicial review authority and award the Court their enduring support.71 While this

63 See, e.g., David S. Law, A Theory of Judicial Power and Judicial Review, 97 geo. L.J. 723, 748, 752 (2009).64 See, e.g., Or Bassok, The Sociological-Legitimacy Difficulty, 26 J.l. & poliTiCs 239, 247251 (2011).65 See, e.g., adRian veRmeule, Judging undeR unCeRTainTy: an insTiTuTional TheoRy oF legal inTeRpReTaTion (2006).66 See biCkel, supra note 12, at 80 (if behind all judicial dialectic there was personal preference and personal

power and nothing else then this is a reality on which we cannot allow the edifice of judicial review to be based, for if that is all judges do, then their authority over us is totally intolerable and totally irreconcil-able with the theory and practice of political democracy.).

67 See esTlund, supra note 16, at 3. See also Thomas ChRisTiano, The ConsTiTuTion oF equaliTy 119121, 241242 (2008) (arguing that in political decisions, expertise is not enough for legitimating authority). Contra Waldron, supra note 9, at 49 (claiming that judicial review might have been acceptable if there were a philosophical elite who could be trusted to work out once and for all what rights we have and how they are to be balanced against other considerations.).

68 esTlund, supra note 16, at 22, 40.69 Hanna Fenichel Pitkin, Introduction, in RepResenTaTion 1, 20 (Hanna Fenichel Pitkin ed., 1969).70 esTlund, supra note 16, at 3. See also id. at 119 (Roughly, no authority without consent. Emphasis in the

original.).71 See, e.g., FRiedman, supra note 21, at 15 ([T]he more salient Supreme Court decisions generally meet with

great public approval. And even when they do not, the public supports the Courts right to decide cases nonetheless.) and 379; Yingling, supra note 58, at 9496 (Not only does the public support the institution of the Supreme Court, but they also support its ability to invalidate legislation using judicial review.).

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solution relies on the Courts democratic credentials, it does not undermine the case in favor of CM judicial review since the Court does not need to mirror public opin-ion.72 Even when the public disagrees with a certain decision making it CM, the more dur able public support for the Court and its judicial review authority remains firm.73 Thus, we acknowledge that judicial review at times does counter public opinion and does so over relatively long periods.74 Yet, we argue that the public and its represen-tatives want a Court that is willing to exercise its judicial review authority in a CM fashion. The Court is the boss in issues of judicial review since the public and its representatives accepted it as such.

Against the claim that the Court is a deviant institution since it counters the major-ity will, we show that the Court is a majoritarian institution since the public and its representatives accept the CM aspect of its work and award the Court their endur-ing support. Some Courts decisions lack specific support, yet the Courts sociological legitimacy as an institution counters the claim that the Court does not correspond to the majoritarian aspect of democracy. The Courts judicial review authority is thus shielded from the claim that it is CM in the literal sense not because it does not decide cases in CM fashion, but because the public and its representatives accept this author-ity. The majoritarianism aspect of the difficulty is solved, rather than dissolved, since while the Court may act in a CM fashion, it is not a CM institution.

Judicial review is relatively superior to other mechanisms for reviewing legislation not because justices possess some special knowledge or because they enjoy an outsider per-spective. In the American context, the Courts special trait is its sociological legitimacy. The Courts unique ability to operate a mechanism to review legislation is based on the contingent fact that of the three branches it is currently, by far, the most accepted insti-tution to hold a CM authority.75 In other words, the Congress or the President may be better equipped in terms of expertise than the Court to make the correct constitutional decision in a concrete case.76 However, their ability to make the correct decision is lim-ited in scenarios in which the public hold a contradictory opinion. Indeed, many schol-ars lament over representatives permanent campaign, i.e., their constant attempt

72 Cf. Jeremy Waldron, The Core of the Case Against Judicial Review, 115 yale l.J. 1346, 1394 (2006) ([T]o the extent that we accept judges because of their democratic credentials, we undermine the affirmative case that is made in favor of judicial review as a distinctively valuable form of political decision-making.).

73 See Gibson, supra note 32, at 840 (Big majorities of the American people do not want to do away with the Supreme Court; roughly a majority wants to protect the Courts jurisdiction; and sizeable majorities trust the Court.); id. at 842 (even when the Court makes unpopular decisions its legitimacy is not at risk.).

74 See Pildes, supra note 25, at 116117 (claiming that scholars who present the Court as a majoritarian institution paint a dangerously misleading picture of how constrained the Court actually is); see also supra text accompanying notes 4647.

75 See Law, supra note 63, at 791 (In [the US] and elsewhere, courts known for striking down supposedly majoritarian legislation have nevertheless enjoyed high levels of public support that put other govern-ment institutions to shame.); see also supra the discussion in section 3.1(a).

76 See Frank B. Cross, Institutions and Enforcement of the Bill of Rights, 85 CoRnell l. Rev. 1529, 15391550 (2000) (Congress can ensure that it receives better legal advice than can the Court, which must suf-fer whichever advocates appear before it. The Executive Branch may have the best case of all for legal quality.).

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to correspond to the latest public opinion poll.77 In comparison to the Court, these branches are not sociologically legitimated to act in a CM fashion nor are they inclined to act in such fashion. The Courts sociological legitimacy as a CM institution rather than any kind of expertise grants it with normative legitimacy to function in a manner in which other institutions cannot. Based on empirical evidence, some scholars argue that the Courts sociological legitimacy is still at least partly built on a public belief that the Court holds expertise.78 Yet, it is important to emphasize that according to our solu-tion, the Courts normative legitimacy is based on public acceptance of the Courts CM authority, rather than the acceptance of the Courts expertise by itself.

Our solution thus awards normative legitimating meaning to sociological legiti-macy.79 In a reality fraught with disagreements over substantive moral issues, the American public and its representatives have chosen and re-chosen judicial review as the procedure for settling their constitutional disagreements thus endowing it with normative legitimacy.80 Whether this happened following President Roosevelts failure to pack the Court,81 or only as a result of the success of Brown,82 it is clear that in recent decades, the Courts CM authority has been, for all practical matters, undisputed.

The people, of course, may change their mind at some point. The publics support for the Court, even its most durable diffuse support, may decrease to a point that our solution is no longer viable.83 Such a development is not expected to occur overnight, since even strong resentment towards a series of specific decisions does not immedi-ately influence the level of the diffuse support for the CM institution. There may also be various shifts in judicial behavior before such a crucial crisis takes place.84 But since

77 See, e.g., david m. RiCCi, good CiTizenship in ameRiCa 207 (2004); Jeff Manza, Fay Lomax Cook, & Benjamin I. Page, Introduction, in navigaTing publiC opinion 3, 4 (Jeff Manza, Fay Lomax Cook, & Benjamin I. Page eds., 2002) (surveying commentators that criticize the development of poll driven leadership).

78 gibson & CaldeiRa, supra note 44, at 8, 1516, 6061, 70, 8081, and 119.79 See A. John simmons, JusTiFiCaTion and legiTimaCy 122, 129133 (2001).80 See FRiedman, supra note 21, at 16 (If anything should be evident by the conclusion, it is that the

Supreme Court exercises the power it has precisely because that is the will of the people.); cf. Waldron, supra note 72, at 13711373 ([E]ven though the members of the society we are imagining disagree about rights, they need to share a theory of legitimacy for the decision-procedure that is to settle their disagreements.). While Waldron wants exactly such a societal agreement on a decision-procedure, he would probably view the publics decision to approve the Courts judicial review power with disdain.

81 See, e.g., FRiedman, supra note 21, at 196 (The true significance of 1937 . . . was plain for all to see. The American people signaled their acceptance of judicial review as the proper way to alter the meaning of the Constitution, but only so long as the justices decisions remained within the mainstream of poplar understanding.).

82 See, e.g., WhiTTingTon, supra note 49, at 23, 25 (claiming that judicial supremacy has dominated American constitutional law since the Warren Court); kRameR, supra note 55, at 220221 (But here is the striking thing: after Cooper v. Aaron, the idea of judicial supremacy seemed gradually, at long last, to find wide public acceptance [B]y the 1980s acceptance of judicial supremacy seemed to become the norm.).

83 See, e.g., Barry Friedman, The Politics of Judicial Review, 84 Tex. l. Rev. 257, 328 (2005) (negative infor-mation, especially a steady flow of it, can decrease diffuse support . . .).

84 See infra the discussion in section 4.5.

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we argue that the normative legitimacy of the institution of judicial review rests (at least to some extent85) on public support, the loss of public support must affect this legitimacy. Otherwise, it runs the risk of referring to nothing more than some vague notion of acquiescence.86

Thus, the Courts judicial review authority is legitimated by public acceptance, not by the morality of the Courts substantive vision as proven at the professors writing table. Normatively legitimating the mechanism of judicial review based on public acceptance does not mean awarding normative legitimacy to the substantive consti-tutional vision that stands at the basis for the Courts decision to strike down a specific statute. The Courts substantive interpretation can be rejected by the public on several occasions, and yet the Court still has enduring public support, and its judicial review authority is accepted in general. The mechanism is accepted; the substantive decision is debated. Hence, while the Court does not necessarily represent values that the public supports, the mechanism of judicial review is reconciled with a majoritarian system.

The public and its representatives have accepted the Courts authority to defy their first-order preferences in the name of constitutional second-order constraints. Those who are bound have chosen their constraining mechanism and have supported its operation. Theirs is not merely a one time pre-commitment or a fictive thought experiment.

4. Solving the CM difficulty: critique and rejoinder

4.1. The reliability of public opinion polls

Public opinion polls are notoriously susceptible to wording and framing effects, and to other forms of manipulations.87 They can create a misleading illusion that a definite public opinion exists where there is, in fact, widespread public ignorance and poorly informed opinions.88 Some scholars view public opinion as an artifact constructed for the purpose of political legitimation of the elites hegemony.89

Be that as it may, the CM difficulty in its literal sense exists only if we take opinion polls as reflective of public opinion. Indeed, according to this difficulty, the Court is CM whenever it counters the majority will as reflected in the results of public opinion

85 We should stress again that the solution presented is restricted to solving the literal CM difficulty. We leave the effect of this solution on the traditional CM difficulty, as well as on other normative difficulties, for future investigation.

86 Cf. Pildes, supra note 25, at 148 (arguing that the mere contention that the public supports the legiti-macy of judicial review despite CM decisions turns the majoritarian thesis into a theory of Burkean con-sent or acquiescence in the status quo . . .); Clifton McCleskey, Judicial Review in a Democracy: A Dissenting Opinion, 3 hou. l. Rev. 354, 362 (1966) (Even if there has been acquiescence, this does not necessarily prove the democratic character of judicial review; it may simply prove our attachment to constitutional principles, even undemocratic ones.); peRRy, supra note 5, at 126.

87 See, e.g., geoRge F. bishop, The illusion oF publiC opinion 817, 5889, 138148 (2005).88 See, e.g., James s. Fishkin, The voiCe oF The people 8084 (1995); bishop, supra note 87, at xvi.89 Pierre Bourdieu, Public Opinion Does Not Exist, in soCiology in quesTion 149 (Richard Nice trans., 1993).

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polls. In other words, our solution to the CM difficulty relies in part on the same instru-ment on which the difficulty itself is built upon. If the instrument is flawed, both the difficulty and the solution are refuted.

4.2. Justice cannot be measured in terms of public support

Our solution deals well with a scenario in which judicial review over legislation is mor-ally justified (in terms unrelated to public attitudes), and in which the public opposes the specific decision while awarding the Court sociological legitimacy. In such a sce-nario, our solution relies on the durable character of the Courts sociological legiti-macy. The Court can hand down unpopular yet morally justified decisions in several cases without harming its sociological legitimacy. The Court does not capitulate to public opinion and yet its CM difficulty, or at least the majoritarian aspect of the diffi-culty, is solved. In this manner the Court fulfills the Constitutions purpose of placing certain issues beyond the reach of public opinion by relying on the publics durable support.90

Our solution does raise serious difficulties in two other scenarios. First, when the Court has sociological legitimacy yet acts immorally. Second, when the Court lacks sociological legitimacy yet acts morally. In the first scenario, our solution solves the CM difficulty for an immoral Court; our argument awards normative legitimacy to an immoral court. In the second scenario, our solution does not apply to a moral Court; our argument fails to award normative legitimacy to a moral court.

For the first scenario consider the following example: a legislator in an imaginary country enacts a law forbidding the detention of citizens without evidence of wrong-doing. A court that has sociological legitimacy, strikes down this law. The court jus-tifies its decision based on terrorist threats. If the public opposes detention without evidence and thus supports the law that prohibits it, in striking down the said statute this court acts in a CM fashion. Yet this court has sociological legitimacy and thus our solution applies!91

In the second scenario, a court deprived of sociological legitimacy, acts morally by striking down anti-miscegenation laws. We hope that the public will endow a decision that is moral (and legal) with specific support, but this, of course, will not always be the case. Thus, a moral decision may yet be CM. In such situation, if the people do not endow the court with sociological legitimacy, our solution will not apply. Thus,

90 See, e.g., West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638 (1943) (The very pur-pose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.).

91 Cf. Korematsu v. U.S., 323 U.S. 214 (1944) (upholding of the internment of American citizens of Japanese decent during World War). Korematsu is a clear example of a decision that was highly immoral yet popu-lar. See Robert H. Jackson, Wartime Security and Liberty Under Law, 1 buFF. l. Rev. 103, 115 (1951) (noting that in Korematsu, [o]ne view, certainly the popular view at the time . . . held exclusion and detention of citizens of Japanese ancestry constitutionally valid.); FRiedman, supra note 21, at 372373 (the cur-rents of public opinion against the interned Japanese came to be very strong.).

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we cannot solve the CM difficulty for a court that acts morally but lacks sociological legitimacy.92

Our solution sets sociological legitimacy as the sole criterion for the normative legit-imacy of judicial review. It is focused on peoples attitudes toward the Court rather than on the morality of the Courts decisions.93 Thus, even if sociological legitimacy endows an institution with some degree of normative legitimacy, its actions can be so atrocious that it lacks any normative legitimacy in terms of the classical justifica-tions for judicial review. In other words, the Courts normative legitimacy awarded on the basis of public enduring support of the Court does not ensure that the Courts decisions will be just according to the various justifications to the Courts power.94 Thus, as other attempts to confront the CM difficulty, our solution is suited only for reasonably just societiessuch as the current American societyin which there is some minimal consensus, both in the public and among the justices, regarding the need to protect fundamental human rights.95

4.3. Happy slaves96

Since the solution we offer is not based on hypothetical consent given by fictive images that hold all the right normative reasons, the publics actual enduring support may be given for all the wrong reasons. Thus, the publics enduring support for the Court has a normative legitimating meaning even if that support is based on a desire to avoid making decisions by clinging on the justices assertions. In this scenario, our solu-tion endows the support of happy slaves with normative meaning. Indeed, while the solution we offer depends on public attitudes towards the Court, in the end it may in fact legitimize a situation of less self-government.

Such a scenario is not far-fetched. While the actual reasons for the publics support for the Court and for judicial review are beyond the scope of this article, it would be extremely presumptuous to assume that they are grounded on some grand under-standing of the concept of constitutionalism or any other normative theory. For example, the Courts performance in Bush v. Gore can hardly be considered as its high point in terms of legality.97 Yet, social scientists discovered that the Court enjoyed a

92 Cf. Am. Fedn of Labor v. Am. Sash & Door Co., 335 U.S. 538, 555556 (1949) (Frankfurter, J., concur-ring) (A Court is not saved from being oligarchic because it professes to act in the service of humane ends.).

93 Cf. simmons, supra note 79, at 133 (criticizing attitudinal accounts of political legitimacy on making their judgments too much about publics attitudes and too little about the acts in questions).

94 See paul W. kahn, poliTiCal Theology: FouR neW ChapTeRs on The ConCepT oF soveReignTy 131 (2011) (Legitimacy, however, is neither a necessary condition of justice nor a substitute for justice. But cor-respondingly, justice is not a substitute for legitimacy.).

95 Cf. Waldron, supra note 72, at 13601369 (explaining that the core of the case against judicial review is designed to hold only in the gray sheds of a reasonably democratic society).

96 Cf. don heRzog, happy slaves (1989) (criticizing consent theories).97 See, e.g., Cass R. Sunstein, Lawless Order and Hot Cases, in a badly FlaWed eleCTion 75, 77, 103 (Ronald

Dworkin ed., 2002) (claiming that the decision produced order without law, and that legal materials did not support the outcome in Bush v. Gore, especially on the question of remedy, and hence the Court acted in a lawless fashion.).

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slight upward spike in its legitimacy98 as a result of this decision. Frank Michelman suggests that this rise in support of the Court may demonstrate that what Americans want above all else of the Supreme Court is assurance that someone is there to bring the country to heel when chaos looms or politics threaten to get out of hand.99

Indeed, the people may just get used to the responsible adult making for them all the important political decisions or fall under the spell of her mesmerizing cha-risma.100 This is the problem with a self-constraining solution that is based on submis-sion to a master rather than on creating a lag of time or a second chance for the people themselves to reconsider their decision to stray from their self-commitment.101

Moreover, the situation is aggravated by the danger of the creation of a self-perpetu-ating cycle in terms of impoverishing the peoples political-decision abilities. As James Bradley Thayer already warned, the rise of judicial review would inevitably bring the people (or at least their representatives) to leave constitutional issues to the Court and avoid taking seriously their obligation to uphold the Constitution. Over time, the people and their representatives lose their constitutional sensitivity, ensuring that they will not be able to reclaim their role as deciders.102

Yet our solution still offers a way out: at some point in time the people may tear their judicial constraints and decide for themselves. Moreover, we can even require that in order to legitimize the Courts CM authority, public acceptance of the Court would have to comply with certain conditions of adequacy, such as being adequately informed.103

4.4. The insult in the denial of the right to equal participation in decision-making

The CM difficulty captures the claim that judicial review shifts political decisions from the people and their representative institutions to nine justices and thus infringes the citizens right to equal democratic participation in political decision-making.104 Scholars who confront the difficulty by justifying the Courts CM authority offer com-pensation in terms of protecting other values. However, some scholars claim that

98 Gibson, supra note 32, at 842.99 Frank I. Michelman, Machiavelli in Robes? The Court in the Election in The longesT nighT 256, 265267

(Arthur J. Jacobson & Michel Rosenfeld eds., 2002).100 Cf. JeRome FRank, laW and The modeRn mind 5 (2009) (1930) (an infantile longing to find a father-substi-

tute in law.); hibbing & Theiss-moRse, supra note 42, at 86 (The people are surprisingly smitten with the notion of elite experts making choices . . .).

101 Cf. esTlund, supra note 16, at 122 (noting that there are consent theories that imply that a person could become a salve, under the complete authority of another person, by consenting to it, so long as this genu-inely reflects his or her will.).

102 James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, in legal essays 39 (1908).

103 See esTlund, supra note 16, at 117, 121123 (discussing different requirements of adequacy).104 See, e.g., Thomas ChRisTiano, The Rule oF The many 3, 15 (1996) (When decisions must be made that

affect the interests of all, then each has a right to an equal say in making these decisions.); Waldron, supra note 9, at 20, 36 (self-government and participation in politics by ordinary men and women, on equal terms, is itself a matter of fundamental right.).

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there is a certain dignity in participation, and an element of insult and dishonor in exclusion, that transcends issues of outcome.105

Our solution tries to narrow this insult. We offer to honor the peoples voice on the question of whether the justices should have the power of judicial review.106 While the public cannot directly participate in the Courts decision-making, according to our solution, public opinion has an ongoing influence on the normative legitimacy of the decision-maker. One should bear in mind that the people have voice with regards to representative institutions also mainly in terms of electing the decider rather than in direct participation in decision-making.107

4.5. Diffuse support in the eye of the judiciary

Though public support may be important for legitimating the Courts CM author-ity, it does not follow that our solutions practical recommendation for justices is to adopt public opinion as their guiding star in adjudicating cases. Justices and com-mentators remind us time and again that the justices do not conduct public opinion polls, and that constitutional questions are not settled even by a consensus of present public opinion.108 In theory at least, a court can stick to a certain method of consti-tutional decision-making (such as, for example, originalism or rights-based theories) without any consideration of the publics support for the Court.109

Yet a complete acoustic separation110 between the normative impact of the Courts enduring public support and the justices decision-making practices seems unrealistic.111 Some of the dissolution theorists point exactly on the influence public opinion has on the justices,112 and there is ample anecdotal evidence that the justices

105 Id. at 2728, 3941 (it is an insult to say that the issues are too important or perhaps too formalistic for [the people] (rather than the judges) to decide ), 46, and 51.

106 See Tom R. Tyler, Psychological Perspectives on Legitimacy and Legitimation, 57 annu. Rev. psyChol. 375, 392 (2006) (a focus on [sociological] legitimacy empowers the members of organizations and societies.).

107 See Slavko Splichal, Introduction: Public Opinion and Democracy Today, in publiC opinion and demoCRaCy vox populivox dei? 1, 3 (Slavko Splichal ed., 2001) (Representative democracy excludes the people from direct influence on national power.).

108 Muller v. Oregon, 208 U.S. 412, 420 (1908) (constitutional questions are not settled by even a consensus of present public opinion, since a written constitution is designed to place[. . .] in unchanging form limi-tations upon legislative action . . . ); see also, e.g., James G. Wilson, The Role of Public Opinion in Constitutional Interpretation, 1993 byu l. Rev. 1037, 1120 (1993) (many Justices have separated the judicial domain, excluding public opinion, from the political domain, where public opinion reigns supreme.).

109 See, e.g., Cass R. sunsTein, a ConsTiTuTion oF many minds 127133 (2009) (analyzing theories that resist giving weight to public opinion).

110 Cf. Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 haRv. l. Rev. 625 (1984) (distinguishing between rules addressed to the general public and rules addressed to officials).

111 Cf. Michael L. Wells, Sociological Legitimacy in Supreme Court Opinions, 64 Wash. & lee l. Rev. 1011, 10501053 (2007) (arguing for the combination of sociological and legal legitimacy in judicial decision-making).

112 See, e.g., FRiedman, supra note 21, at 374 (summarizing several recent studies and pleading at long last to move past the question of whether the justices are influenced by popular opinion, a question whose only conceivable answer is yes . . .).

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are paying attention to the publics confidence in the Court.113 Hence, such an influ-ence exists with life tenured justices, who supposedly have no normative incentive to follow public opinion, and whose ethos of independence even provides them with a counter-incentive.114 Surely, if public support of the Court becomes an essential part of a salient solution to the Courts most prominent normative difficulty, it would be unrealistic to assume that justices would not become even more interested in their ratings in polls. Subsequently, the discussion of the solution to the CM difficulty must take into account the influence such a discourse of legitimization would have on judicial decision-making and judicial behavior.

One obvious danger is that the Courts awareness of the importance of its enduring public support would encourage the Court to engage in all sorts of strategic maneu-vers. Even if it does not follow public opinion in each and every case in an attempt to preserve its support, the Court may prefer to remain inside a safety zone of social consensus in order to preserve its reservoir of public confidence.115 Since the size of the Courts reservoir of support is not constant, and is at least somewhat potentially influenced by the publics reaction to particular decisions, the Court may choose to refrain from particularly unpopular decisions, or to make particularly popular deci-sions, or both. Should this happen, arguably, our solution may lead, at the bottom line, to populist judicial behavior.

A populist stance by the Court does not only run against the very purpose of judicial review as a mechanism to constrain the majority in the name of funda-mental principles,116 it also corrupts the logic of the legal language. If the Court decides cases according to the logic of public support instead of legal logic, val-ues such as consistency, coherency and predictability will be sacrificed, in certain cases, in pursuit of public satisfaction.117 The legal language thus becomes a prod-uct of justices estimating how popular opinion is going to develop rather than a principled regime.118

113 See, e.g., Devins, supra note 52, at 76 (Furthermore, there is some reason to think that the Court is pay-ing attention to this polling data. Consider Chief Justice Rehnquists 1999 year-end report. The Chief Justice approvingly cited a February 1999 Gallup Poll showing that 80 percent of Americans surveyed stated that they had a great deal or fair amount of trust for the judicial branch of government, far exceeding figures for the other branches.).

114 See Helmut Norpoth & Jeffrey A. Segal, Popular Influence on Supreme Court Decisions, 88(3) am. pol. sCi. Rev. 711, 712 (1994).

115 See, e.g., Friedman, supra note 83, at 327 (describing diffuse support as the leash on which the Court operates).

116 See, e.g., David A. Strauss, The Modernizing Mission of Judicial Review, 76 u. Chi. l. Rev. 859, 900 (2009) (The problem is that the courts may be too ready to yield to the political process and may therefore fail to vindicate principles that courts, and courts alone, are well suited to enforce.).

117 See, e.g., biCkel, supra note 12, at 69, 258 (devising the technique of passive virtues in order to avoid the corruption of the legal language in face of public pressures); Robert C. Post & Neal S. Siegel, Theorizing the Law/Politics Distinction: Neutral Principles, Affirmative Action, and the Enduring Legacy of Paul Mishkin, 95 CaliF. l. Rev. 1473, 14841488, 14961497, 1506 (2007) (discussing the tension between adhering to legal language and corrupting legal logic in order to preserve popu-lar support).

118 See Strauss, supra note 116, at 898.

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32 ICON 11 (2013), 1333

These concerns should not be underestimated. However, one must remember that enduring public support is not expected to serve as any kind of guidance for constitu-tional decision-making. Indeed, we do not claim that the Courts normative legitimacy is based on the justices ability to reflect public opinion.

Conclusion: Ulysses wants to be bound all the timeAttempts to justify the Supreme Courts CM judicial review authority implicitly accept the story of Ulysses and the Sirens119 as a metaphor for describing the rela-tions between the People, the Constitution, and the Court. According to this meta-phor, the People (Ulysses) are well aware of the ill influence of short-term preferences (Ulyssess desires while hearing the Sirens sing) on their deep constitutional com-mitments (the ships course). Hence, they make a pre-commitment and bind them-selves to the Constitution (the ships mast) in order to ensure that they will not cause the ship to stray from its course. Despite Ulyssess transient protests (current public opinion or the legislators opinion on the substantive issue) when hearing the Sirens sing, the ropes (the Court) bind him to the mast, and save him from losing his mind and changing the ships course. Without the ropes, [i]f voters were allowed to get what they wanted, Stephen Holmes predicts that they would inevitably shipwreck themselves.120

As elaborated above, constitutional theorists have suggested different right courses for society to adopt.121 Protecting the human rights of disadvantaged groups of society, preserving democratic procedures, or guarding certain basic moral values are all examples of societys right course extracted from the Constitution.122 The CM judicial review authority serves as a mechanism that ensures adherence to the chosen course, even against the current desires of the public. Thus, the CM nature of judicial review authority is understood as a virtue, since it ensures society will con-tinue in the right direction.123

In recent years, some legal scholars have attempted to dissolve the CM difficulty. Based on empirical work showing that the Court does not usually stray from the pref-erences of the public, these scholars claim that the Court is not a CM institution at

119 homeR, The odyssey, bk. XII, lines 148, 151152 (Martin Hammond trans., 2000). See Daryl J. Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 haRv. l. Rev. 657, 657 (2011) (Constitutionalism is often analogized to Ulysses binding himself to the mast in order to resist the fatal call of the Sirens.); Jon elsTeR, ulysses unbound 88105 (2000) (using this metaphor to explain the Constitution as a pre-commitment mechanism).

120 Stephen Holmes, Precommitment and the Paradox of Democracy, in ConsTiTuTionalism and demoCRaCy 195, 196 (Jon Elster & Rune Slagstad eds., 1988).

121 See supra section 2.1.122 See Roberto Gargarella, In Search of a Democratic JusticeWhat Courts Should Not Do: Argentina, 1983

2002, 10 demoCRaTizaTion 181, 182 (2003) (describing several justifications for the CM authority).123 Michael J. Klarman, Majoritarian Judicial Review: The Entrenchment Problem, 85 geo. l.J. 491, 492 (1997)

(Those who praise countermajoritarian judicial review as a virtue . . . have failed to reconcile their defense of minority rights with the principle of majority rule.).

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all. The Court does not serve as binds around the Ulyssess hands; instead, it follows Ulysses captive will. Moreover, if the Court did try to prevent Ulysses from following the Sirens song, it would, in all likelihood, fail.124

The metaphor of Ulysses and the Sirens indeed fails to capture the truth about the current relationship between the American People, the Constitution, and the Court. Its failure, however, does not stem from ignoring the Courts majoritarian nature. The Court does, at times, act in a CM fashion. Based on empirical works we argued that the public and its representatives have accepted and supported the Courts authority to act in a CM fashion. The Court enjoys second-order enduring support even when its decisions lack first-order specific support.125 Though Ulysses wants to change the ships course when he hears the Sirens song and follow their seduction, he acknowl-edges, at the same time, the importance of the ropes that bind him to the mast. In other words, even when the Sirens sing, the ropes legitimacy is established by Ulyssess acceptance of the role they play. His acceptance of the binds is not merely a pre-com-mitment made before the sirens start singing. Ulysses wants to remain bound even as the Sirens sing; his enduring support for the ropes work does not stop even when he protests vigorously.126

The CM difficulty in its literal sense is neither justified nor dissolved. It is solved. The same factor that creates the difficulty (public opinion) is at the same time its solu-tion. The Court may decide cases in a manner that counters public opinion, but its CM authority is accepted by the majority of the public and its representatives. The public and its representatives award the Court a majoritarian approval even when it acts in a countermajoritarian fashion. The People have spoken: they want to be bound by judicial constraints.

124 Cf. The Proper Role of the United States Supreme Court in Civil Liberties Cases, 10 Wayne l. Rev. 457, 476 (1964) (Alexander Bickel: [A] court that decided the equivalent of five cases such as Brown v. Board of Education in a single year would have seen the end of the institution, I am sure.).

125 Cf. Pildes, supra note 25, at 148149 (discussing the notion of second-order majoritarian support).126 Like every metaphor, Ulysses and the Sirens has its defects. See, e.g., JeRemy WaldRon, laW and disagReemenT

261271 (1999); Jon elsTeR, solomoniC JudgmenTs 196 (1989).

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