Judicial Majoritarianism

Abstract

For decades, constitutional theorists have confronted the normative problems associated with judicial review by an unelected judiciary; yet some political scientists contend that judicial review actually tends to promote majoritarian interests. We evaluate the majoritarian nature of judicial review and test the political foundations that shape this process. To do so, we construct a statute-centered data set of every important federal law enacted from 1949 through 2008 and estimate the probability of a law being challenged and subsequently invalidated by the Supreme Court. Our methodological approach overcomes problems of selection bias and facilitates a test of judicial majoritarianism and the mechanisms that drive that behavior. We find that the Court tends to invalidate laws with little support from elected officials and that this pattern is primarily driven by the justices’ concern for congressional constraint during the certiorari stage.

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