COUNTER-MAJORITARIANISM IN THE AMERICAN SUPREME COURT: THE FUTILE YET NECESSARY PURSUIT OF JUSTIFYING JUDICIAL REVIEW

Abstract

The United States Supreme Court is a counter-majoritarian force in our democracy. Nine unelected and lifetime appointed justices decide a substantial amount of some of the most important issues in our society. My thesis seeks to answer whether there is any foundation for this power of judicial review and if judicial review can coincide with our representative democracy. Legal scholars and constitutional experts have tried in vain to answer this question since the monumental ruling in Marbury v. Madison in 1803. However, the debate as we know it today has significant roots in the mid to late twentieth century. In conjunction with a brief historyof the Supreme Court during the twentieth century, I analyze three of the most influential books on judicial review as the authors dismiss certain theories and try to propose their own solutions. What becomes clear is that there probably has not been a theory of judicial review that can withstand legitimate criticism and that it is unlikely that there will ever be. Instead of hoping for an all-encompassing theory of judicial review, I propose that we accept its futility, but acknowledge the importance of the pursuit of an answer as only through participation in, and vigilance of, the pursuit can we adequately check the Supreme Court’s counter-majoritarian tendencies.