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The Countermajoritarian Classics (And An Upside Down Theory Of Judicial Review), Corinna Barrett Lain

Corinna Lain

Brown v. Board of Education. Engel v. Vitale. Miranda v. Arizona. Furman v. Georgia. Roe v. Wade. Within the academy, these countermajoritarian classics stand as a testament to the Supreme Court’s willingness to thwart the will of a national majority in the name of minority rights. Yet a historical examination of these cases reveals a dramatically different narrative, illustrating just how majoritarian even ostensibly countermajoritarian cases can be. Indeed, in several of these cases, the Court’s ruling was so majoritarian, so consistent with national public opinion, that it only looked countermajoritarian because the seemingly majoritarian stance of the democratically elected …