A majoritarian basis for judicial countermajoritarianism Academic Article uri icon

abstract

  • Judicial protection of disfavored minorities against oppressive legislation in majoritarian separation-of-power systems raises a puzzle: Why dont legislative majorities enacting discriminatory legislation curb judicial power when judges use their power to protect minorities and stymie the legislation? We answer this question by showing that judicial protection of disfavored minorities can emerge as an unintended by-product of majoritarian politics. We develop a model that includes the two aspects of judicial review Alexander Hamilton discusses in The Federalist No. 78: Judicial protection of disfavored minorities against hostile popular majorities, and judicial protection of majority interests against legislative depredation. It is the institutional linkage between these functions that induces popular majorities, within limits, to side with judges against legislatures even when those judges protect minorities that popular majorities want to oppress.

published proceedings

  • Journal of Theoretical Politics

author list (cited authors)

  • Rogers, J. R., & Ura, J. D.

publication date

  • January 1, 2020 11:11 AM