The Countermajoritarian Difficulty's Countermajoritarian Difficulty

Alexander Bickel's big idea was that judicial review was problematic because countermajoritarian and, therefore, he argued, undemocratic. This idea is called the countermajoritarian difficulty, and it is the basis of just about all criticism of the institution of judicial review, though (especially prior to when he wrote about and named it) not always by that name. But it strikes me that the idea of the countermajoritarian difficulty has a difficulty of its own, along rather similar lines. Here's the set-up: suppose that a bunch of advocates of majoritarianism got together and conspired to set up a referendum on judicial review, in which all the citizens of the nation could vote to abolish judicial review once and for all. And now let's suppose that referendum fails.

What now? A majority just voted to keep the institution of judicial review. Is review, then, undemocratic? Well, it is certainly countermajoritarian on its own terms. But abolishing it is at least as undemocratic, since, uh, it's rather directly counter the expressed will of the majority. The question, in other words, for Bickel and his followers is whether the people are empowered, collectively through at-least-majoritarian institutions, to constitute countermajoritarian institutions to govern them, because they desire for those institutions to exist? When posed this way, I think the answer is obviously yes!

A further question, of course, is whether the people have in fact expressed a majority desire to have judicial review. There's never been a referendum like the one I described, of course. But we did ratify the Constitution, and both the Federalist Papers and Brutus' response to them assumed that judicial review was a feature of the proposed Constitution. When Andrew Jackson said, "John Marshall has made his decision, now let him enforce it!", people did not generally like that. Hell, he himself recognized how problematic it was, and backed down from it a few months later. When Franklin Roosevelt, the most popular President ever with enormous Congressional majorities, made the most concerted attack on judicial independence in our nation's history, he failed. Miserably. It damaged his reputation, it damaged his Presidency. It's something like Number Two on the list of Bad Things About FDR (written not by a Republican of the current decade-or-so), and only that because the whole Japanese-internment thing was pretty effing bad. The Brown case prompted massive resistance throughout the South, but the Court is still standing. Roe v. Wade has been controversial in a way that has managed to simmer for nearly forty years now, and the Court is still standing. And after all of these controversial decisions, the judiciary routinely ranks much, much higher in public opinion polls of confidence in institutions than either the President or, especially, Congress. All of this is fairly compelling evidence that We, the People like the institution of judicial review quite a lot. And I can't see why its opponents from the perspective of majoritarian philosophy aren't compelled to address this point before they even get started, since, if my conclusion about the public's desires is accurate, a challenge to judicial review from majoritarian grounds is invalid on its own premises.