Electing Justices

[RJLipkin at aol.com]

In a message dated 9/12/2005 1:37:45 PM Eastern Standard Time,  
crossf at mail.utexas.edu writes:

I  suppose America will never get over the so-called "countermajoritarian  
difficulty."  I think there's been ample explanation of why this is not  in fact 
a difficulty, from a variety of different perspectives.  And it's  a little 
sad to see it resurrected so vigorously without even a countenancing  of those 
explanations.



The charge against  the judicial supremacy has little to do, in my view, with 
 "countermajoritarianism." The problem is much more general (and 
substantially  deeper) than determining whether ours is a majoritarian government or 
whether  instead it is some deeper form of democracy or republic.  In my view, ours 
 is not, nor should it be, a simply majoritarian government. However, the 
modest  role citizens formally play in self-governing is a problem that affects 
deep  democracy and republicanism as well. And incidentally, although I've seen 
an  overwhelming number of explanations why the "countermajoritarian problem" 
is not  a difficulty, I've never seen convincing explanations of why judicial 
supremacy  should be permitted to have as many democractic (nonmajoritarian  
democracy) deficits as it currently has.
 
        Alexander Bickel lead us  astray, in my view, by calling the 
democratic deficits of judicial supremacy  "countermajoritarian."  The argument 
against judicial supremacy from the  perspective of a democratic republic has a much 
longer lineage than is evidenced  by those who apparently believe The Least 
Dangerous Branch was the  first statement of this "counter-(non-majoritarian 
democracy)  democratic" problem.
 
Bobby
 
Robert Justin  Lipkin
Professor of Law
Widener University School of  Law
Delaware
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