Conditioning the Counter-Majoritarian Difficulty: Parties and Judicial Power

• In Event: The U.S. Supreme Court in Contemporary Democratic Politics

Abstract

Concerns about judicial power as a threat to democracy are resurgent in the United States, especially as the Supreme Court has made several controversial high-profile rulings. These concerns align with an older scholarly debate about the “counter-majoritarian difficulty”, which refers to concerns that judicial power undermines majority rule. The prevailing school of thought in political science, however, contends that concerns about the counter-majoritarian difficulty are misplaced. This school of thought, often called “regime theory”, argues that the Court lacks both the incentives and capacities to durably thwart the commitments of governing coalitions that command the support of national majorities. Indeed, scholars have found that exercises of judicial power often reflect delegation of problems to the Court by members of a dominant coalition. We argue that regime theory’s findings have specific scope conditions that no longer hold true today. Specifically, we theorize that regime theory’s claims hold when party competition and intraparty cohesion are both low, as was the case in the era of the Warren Court. When interparty competition and intraparty cohesion increase, the Court is more likely to operate in a political context in which it has the power to align consistently with a political coalition that is not a dominant regime, thereby raising the likelihood that the counter-majoritarian difficulty will emerge. To illustrate the influence of these two factors on the Court’s power, we compare several periods of judicial power and show why normative concerns about judicial power as a threat to democracy in the contemporary period are well-founded.

Authors

• Warren L Snead, Swarthmore College

• Kumar Ramanathan, University of Illinois, Chicago