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Upside-Down Judicial Review, Corinna Lain
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, …
The Countermajoritarian Classics (And An Upside Down Theory Of Judicial Review), Corinna Barrett Lain
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 …
Death Is Different, But Not Really, Corinna Barrett Lain
Death Is Different, But Not Really, Corinna Barrett Lain
Corinna Lain
The Supreme Court’s landmark death penalty rulings over the past several years have renewed scholarly criticism of the Eighth Amendment’s “evolving standards of decency” doctrine, which invalidates a punishment when a national consensus has formed against it. Critics claim that it makes no sense for constitutional protection to follow majoritarian sentiment—particularly in the capital context, where death penalty politics make “tyranny of the majority” more than a theoretical concern. Defenders contend that while majoritarian constitutional protection may be problematic in general, Eighth Amendment protection is different; the text of the “cruel and unusual punishments” clause invites, if not requires, protection …