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Upside-Down Judicial Review, Corinna Lain

Corinna Lain

The countermajoritarian difficulty assumes that the democratically elected branches are majoritarian and the unelected Supreme Court is not. But sometimes just the opposite is true. Sometimes it is the democratically elected branches that are out of sync with majority will, and the Supreme Court that bridges the gap—turning the conventional understanding of the Court’s function on its head. Instead of a countermajoritarian Court checking the majoritarian branches, we see a majoritarian Court checking the not-so-majoritarian branches, enforcing prevailing norms when the representative branches do not. The result is a distinctly majoritarian, upside-down understanding of judicial review. This Article illustrates, explains, …