Volume 73, Number 2

May 1998

The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy

Barry Friedman

The apparent tension between judicial review and the democratic process—what Alexander Bickel dubbed the “countermajoritarian difficulty”—has been the focal point of modern constitutional scholarship. At the same time, however, scholars have rarely examined the origins of the countermajoritarian difficulty. In this Article—the first of a three-part series—Professor Friedman undertakes such an examination. Although countermajoritarian criticism of the Supreme Court has surfaced to some extent throughout our nation’s history, Professor Friedman’s historical analysis identifies four factors that tend to presage the prominence of such criticism at any given time. By studying criticism of the Court during Jeffersonian Democracy, the Age of Jackson, and in the wake of the Dred Scott decision, he argues that an essential, but often overlooked, factor is the extent to which the Court’s decisions are regarded as binding—not only upon the parties to the case at bar, but upon future litigants and the other branches of the state and national government as well. Thus, Professor Friedman contends, when the Court is acting during a time of perceived (and actual) judicial supremacy, countermajoritarian criticism will flourish. In the latter two Articles in this series, Professor Friedman will address the responses of the political branches to the emergence of judicial supremacy and the eventual rise of the “countermajoritarian difficulty” as the central problem of constitutional scholarship.