Beyond the Countermajoritarian Difficulty

Stephen M. Engel

doi:10.1017/CBO9780511994890.002

1 - Beyond the Countermajoritarian Difficulty

Published online by Cambridge University Press: 05 June 2012

Stephen M. Engel

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Stephen M. Engel: Affiliation:
Bates College, Maine

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Summary

Politicians have challenged the judiciary's legitimate independent authority throughout American history. Yet scholars contend that the judiciary, and particularly the Supreme Court, has become more powerful and secure over time. Nothing in twentieth-century American politics matches how Jeffersonians reined in the judiciary in the early 1800s or what congressional Republicans achieved in the 1860s. Franklin Delano Roosevelt's (FDR's) court-packing plan collapsed and the impeachment and jurisdiction-curbing threats lobbed against the Warren Court went nowhere. Recent attacks notwithstanding, the Court is unfazed; it and has “intensified its political activity” since the mid-twentieth century, and it shows “few signs of reversing course.” Some scholars assert not only that the judiciary reigns supreme in matters of constitutional interpretation but that such supremacy has been deliberately sought and constructed by elected politicians.

It appears that attacks focused on the Court's democratic deficit have become less potent over time even as the polity as a whole has become more democratic. One way to reconcile this paradox is to suggest that judicial aggrandizement has not come at the expense of the elected branches. Political attacks on the federal courts that do not result in undermining judicial power could be a win-win for all sides. Or, a strong judiciary might serve some advantage despite its countermajoritarian potential, and thus that potential needs to be grudgingly accommodated.

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Type: Chapter
Information: American Politicians Confront the Court
Opposition Politics and Changing Responses to Judicial Power
, pp. 19 - 42

DOI: https://doi.org/10.1017/CBO9780511994890.002 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2011

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