Upside-Down Judicial Review
Citation: 101 Geo L.J. 113 (2012)
The countermajoritarian difficulty assumes that the democratically elected branches are majoritarian and the unelected Supreme Court is not. But some- times the opposite is true. Sometimes it is the elected branches that are out of sync with majority will and the Supreme Court that bridges the gap, turning the conventional understanding of the Court’s role on its head. Instead of a countermajoritarian Court checking the majoritarian branches, we see a majori- tarian Court checking the not-so-majoritarian branches, enforcing prevailing norms when the representative branches do not. What emerges is a distinctly majoritarian, upside-down understanding of judicial review. This Article illus- trates, explains, and explores the contours of this understanding, using three classic cases of the countermajoritarian difficulty—Brown v. Board of Education, Furman v. Georgia, and Roe v. Wade—to anchor the discussion. Democracy never looked so undemocratic, nor (in an upside-down way) has it ever worked so well.