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Judicial Review: The Countermajoritarian Dilemma
Transcript of Judicial Review: The Countermajoritarian Dilemma
The Counter-Majoritarian Dilemma in a Majoritarian Society The Dilemma Main Problems 1. Countermajoritarian = Not Popularly Elected
2. Not explicit in the Constitution
3. Judges put ideology into decisions Is Majoritarian Better? Responses:
1. Tyranny of the Majority
(Mathew Adler, UPenn Law Review)
2. Anti-Democratic Theory
(Alon Harel, Law and Philosophy Journal) Brown v. Board of Education Where is Judicial Review in the Constitution? Responses:
1. Term "Judicial Review" wasn't used until 1910
(Sarah Bilder, The Yale Law Journal)
2. Already a norm amongst British Colonies and included in most U.S. States Constitutions Judicial Restraint? Where do justices come from? People President Supreme Court Response:
1. There is balance of ideologies
(Barry Friedman, The Yale Law Journal)
2. Legitimacy Justice Frankfurter
Baker v. Carr (1962) "The court's authority- possessed of neither the purse nor the sword- ultimately rests on sustained public confidence in its' moral sanction."