Squaring the Circle: Democratizing Judicial Review and the Counter-Constitutional Difficulty

The current polarization in the appointments process for the United States Supreme Court creates a problem that I call the counter-constitutional difficulty. A constitution is designed to put certain decisions beyond the reach of ordinary politics. Laws can be made and changed by majoritarian mechanisms whereas a constitution can be made and changed only by supermajoritarian mechanisms. The United States Constitution, however, has an Achilles heel. The easiest way to amend the Constitution is by changing the membership of the Supreme Court given the rigors of Article V. A number of decisions by the Court have played an important role in mobilizing religious conservatives who have sought to place their partisans on the Court in the hope that they will transform the Constitution. The appointments battles that led to the nominations of Justices Roberts and Alito and to the withdrawal of Harriet Miers’s nomination illustrate both the strategy and the power of this conservative movement. Presidents pay attention to factions important to their coalition that care deeply about who is appointed to the Supreme Court. As a consequence, the appointments process for the United States Supreme Court introduces the problem of faction into constitutional interpretation thereby undermining the protections afforded by Article V.\nThe counter-constitutional difficulty is not a problem in many polities that adopted judicial review in the twentieth century. They learned from the American experience that a court with the power to construe a constitution is not only a court of law but also a powerful political actor. As a consequence, these polities created mechanisms of political accountability that democratized judicial review. The nations of Europe, for example, typically elect justices by means of a supermajority. Canada provides for a legislative override of constitutional decisions. If the United States required a supermajority to confirm the nomination of a justice, then it would become difficult, if not impossible, to transform the Constitution by changing the membership of the Supreme Court. If the United States allowed Congress to override the decisions of the Supreme Court, then the political factions that sought to overrule Roe v. Wade by changing the make-up of the Court would have sought to override the decision directly rather than indirectly by engaging in appointments battles. Democratizing judicial review, in short, reduces the power of factions to use the appointments process to amend the Constitution.

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