In Defense of a Political Court

By Terri Jennings Peretti | Go to book overview

CHAPTER 7
Democratic Theory Revisited

CONVENTIONAL legal scholars regard constitutional decisionmaking motivated by the personal political preferences of the justices as illegitimate and as precisely the evil to be avoided. Those personal views after all have not been tested in elections and approved by voters. Nor do voters have the opportunity to reject those views, and the justices who hold them, via electoral retribution. And when the Court rests a decision on the Constitution rather than a statute, not even a majority in the electorate or in Congress is capable of reversing it. As these scholars point out, that is certainly not what one would expect in a democracy.

However, as this chapter seeks to prove, these conventional scholars, or “neutralists,” rest their entire enterprise, their resolution of the legitimacy question, and their condemnation of value-voting on a view of American democracy that is fundamentally flawed. There are in fact two flaws to be examined here. The first is a serious one, the second is fatal.

As the first part of the chapter demonstrates, the neutralists overstate the degree to which the “political” branches are subject to majoritarian influences and understate the degree to which the Court is subject to democratic influences. Once acknowledged, the persuasiveness of the claim that the Court is uniquely deviant and antimajoritarian and, therefore, in need of some extraordinary form of legitimacy is greatly reduced.

The last half of the chapter then addresses the second and fatal flaw in the neutralists' arguments: their assertion that the central principles of American democracy are majority rule, electoral accountability, and legislative supremacy. While judicial review and value-voting would be correctly viewed as possessing dubious legitimacy in a majoritarian, legislative-centered system, the American political system is neither majoritarian nor legislative-centered. Rather, it is “pluralist” in structure and operation.

In a pluralist system, there are numerous and diverse political institutions that are nonhierarchically arranged. This increases the opportunities for

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