“Democracy is in peril. The majority no longer rules; a determined minority has the whip hand. The least accountable branch of government, the Supreme Court, has fallen into the hands of an aggressively counter-majoritarian faction, which intends to traduce self-government for ideological ends. The time has come to consider drastic countermeasures against our robed masters and their nascent tyranny.
These arguments are on the lips of many liberals lately. With the nomination of Brett Kavanaugh to the Supreme Court, general Trump-era anxieties have found a focal point in the fear of right-wing judicial activism, of a high court that pushes policy rightward and allows Republicans to lock in anti-democratic advantages.
But any liberal with an ounce of self-awareness should recognize the resemblance between their sudden fear of juristocracy and the longstanding conservative critique of exactly the same thing. Indeed it’s quite striking, and ironically amusing, to have Trump-era liberals striking the same anti-Supreme Court notes as the talk-show populists and religious-conservative intellectuals of my own not-so-distant youth.
Partisanship being what it is, I don’t really expect either side to learn anything from these echoes and convergences. But for liberals newly awakened to the dangers of judicial power, let me offer two suggestions for thinking seriously about democratic accountability in Congress and the courts.
First, it would be wise for liberals to recognize that neither a judiciary out of step with democratic majorities nor an electoral advantage for one political apparatus are new things in American history — because when the Democratic Party dominated American politics both were important aspects of liberalism’s rule.
The politics of the 1940s and ’50s and ’60s would have still been generally liberal without judicial activism; Democrats would have still held congressional majorities, mostly, without the baked-in advantages that gave them more House seats than their share of the popular vote.
But the countermajoritarian sweep of liberal jurisprudence in that era was still dramatic, extending beyond race and segregation to encompass the entirety of the culture war, where majorities were consistently overriden, legislative debates consistently short-circuited, and longstanding features of American life — ecumenical school prayer, Christian-influenced morals legislation — overruled or uprooted by fiat.”
David Lindsay: Well done Ross Douthat, for awhile you had me confused. This is an attractive set of arguments. Here are the two top comments, which I endorsed, which help put the analysis above into some perspective.