This is going to be an all too brief post about an issue that could literally take up tomes. In a sense, that is the purpose of this post, has anybody written the tome looking at countermajoritarianism along these particular lines?
The article by The New York Times’ Linda Greenhouse discusses the recent triumphs of the “conservative” majority on the Roberts’ Court and, to an extent, bemoans the demise of the Judiciary as a means for affecting lasting social change. What struck me as interesting was the discussion of leading constitutional scholars such as Sunstein and Tribe and their (apparent) blindness to what seems to me a fairly obvious point (and one that Grannis is found of pointing out)…it is ultimately self defeating in a democratic society to ground significant social policy on the rulings of a countermajoritarian institution like the Judiciary. It would seem that given (at least to me and others?) this fairly obvious point, the desire to recover a “progressive” judicial philosophy is ultimately and always doomed to frustration.
It then occurred to me though that a thinker who lionizes the Warren Court might miss a bit of history in reconstructing that particular period of judicial social change? Perhaps arguably (although I do not really think so, unless one divorces the Warren Court’s criminal procedure cases from its racial equality cases, which I think is a chimera), the Warren Court’s most lasting contributions rest in the legal nails it put in Jim Crow’s coffin. The normal “progressive” telling of this tale involves a heroic and progressive Court overiding the reactionary legislature and timid executive to bring about revolutionary social change. Query though whether this narrative isn’t overly simplistic?
I think, one would not be remiss in arguing, historically, that it was the counter-majoritarian Senate and even, when looking at the country as a whole, the counter-majoritarian state legislatures and governors in the Jim Crow South, who were frustrating the majority impulse (growing since TR’s administration and accelerating through the New Deal and Truman’s integration of the armed services) toward more racial equality. It might be fairer to say that the countermajoritarian Court, with its progressive interpretation of the 14th Amendment, stalemated the countermajoritarian institutions described above, freeing the political branches to enact and enforce legislation like the Civil Rights Act and the Voting Rights Act.
On this telling, the Warren Court’s role in helping to create a more equal society, though courageous, is perhaps a bit more modest than the received wisdom would have us believe.
Obvioulsy, there is a lot here to flesh out and I haven’t even begun to address this analysis adequately. My initial query stands, has anyone looked at this this way before? Perhaps fodder for a law review note, if any law students read the blog? Just include a footnote thanking me.