New Majoritarian Constitutionalism

New Majoritarian Constitutionalism Joseph Landau * ABSTRACT: Ever since Alexander Bickel coined the phrase “counter-majoritarian difficulty,” commentators have frequently described the Supreme Court as either a “majoritarian” or “counter-majoritarian” institution. In this heuristic dichotomy, the Justices either base constitutional law on their own independent and subjective interpretations or they rely on extrinsic indicators to determine constitutional meaning. In practice, however, this dichotomy is neither clearly evident, nor clearly applied, and a third approach—“New Majoritarian” Constitutionalism—has emerged. Under new majoritarian constitutionalism, the Court considers (1) the actual decisions of courts and juries; (2) legislative trends; (3) executive branch practices; and (4) geographic disparities within various jurisdictions. This model of majoritarianism accepts the traditional idea that constitutional decisions must be grounded in conventional lawmaking sources and that interpretations of vague constitutional language should accord with broadly held, majoritarian positions. This approach, however, creatively uses traditional indicators to a far greater extent than others. This Article provides a new typology of majoritarian constitutional theories that reorients our understanding of the role of objective indicators of meaning, with major implications for scholarship and doctrine. In addition to its descriptive power, new majoritarianism has important normative implications—promoting institutional process values such as stability and transparency, while reinforcing the centrality of coordinate branch dialogue in evolving constitutional meaning. I. INTRODUCTION ........................................................................... 1034 II. THE DEBATE OVER MAJORITARIAN CONSTITUTIONALISM .......... 1037 A. I NSIDE THE C ONSENSUS C ONSTITUTIONALISM D EBATE ............ 1039 * Professor of Law, Fordham Law School. I would like to thank Olivia Chalos, Ben Chisholm, Nestor Davidson, Deborah Denno, Howard Erichson, Pedro Fortes, Mitchell Friedman, Justin Giles, Abner Greene, Jeffrey Harper, Clare Huntington, Michael Klarman, Corinna Lain, Tom Lee, Youngjae Lee, Ethan Leib, Zachary Leibowitz, Eli Meltz, David Menschel, Henry Monaghan, Jacob Sayward, Jed Shugerman, Elizabeth Slater, Rob Smith, Richard Squire, Juliette Todd, Brian O’Toole, and Alexander Tsesis for their comments and suggestions. 1034 IOWA LAW REVIEW [Vol. 103:1033 1. Consensus Constitutionalism and Majoritarian Influences .................................................................... 1039 2. Critiques of the Consensus Model ............................. 1041 B. W HAT THE C ONSENSUS D EBATE M ISSES ................................. 1043 III. NEW MAJORITARIANISM ASCENDANT .......................................... 1045 A. T HE T RADITIONAL M AJORITARIAN M ODEL ............................ 1046 B. T HE E XPANSIVE M AJORITARIAN M ODEL ................................. 1048 C. T HE N EW M AJORITARIAN M ODEL .......................................... 1051 1. Law in Action Versus Law “On the Books” ................ 1051 2. Legislative Trends ....................................................... 1055 3. Geographic Disparities ............................................... 1060 IV. DOCTRINAL IMPLICATIONS OF NEW MAJORITARIANISM .............. 1064 A. N EW M AJORITARIANISM AND THE D EATH P ENALTY ................ 1064 B. N EW M AJORITARIANISM AND J UVENILE L IFE W ITHOUT P AROLE ................................................................................ 1074 V. NORMATIVE IMPLICATIONS OF NEW MAJORITARIANISM ............. 1079 A. R ETHINKING M AJORITARIANISM AND THE R OLE OF THE C OURT .................................................................................. 1079 1. Recalibrating the Majoritarian/Outlier Dichotomy ................................................................... 1080 2. New Majoritarianism and Political Power ................. 1082 3. New Majoritarianism at the Political Periphery ........ 1084 B. N EW M AJORITARIANISM AND I NSTITUTIONAL P ROCESS ............ 1086 1. New Majoritarianism and Legal Uncertainty ............ 1086 2. New Majoritarianism and Constitutional Dialogue ....................................................................... 1089 VI. CONCLUSION .............................................................................. 1092 I. INTRODUCTION When Yale Law Professor Alexander Bickel, in his 1962 book The Least Dangerous Branch , coined “the counter-majoritarian difficulty,” he dichotomized the manner in which judicial review and constitutional interpretation are often expressed and understood. 1 The first part of the 1. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 16 (2d ed. 1986) (describing the problem of unelected judges undermining the democratic process by resolving major constitutional questions against the wishes of the majority); see id. at 16–17 (“[W]hen the Supreme Court declares unconstitutional a legislative act or the action of an elected executive, it thwarts the will of representatives of the actual people of 2018] NEW MAJORITARIAN CONSTITUTIONALISM 1035 dichotomy is the counter-majoritarian view, in which the justices say “what the law is” 2 by rendering constitutional decisions through their own faculties of interpretation. A second and opposing approach is the majoritarian view, in which constitutional meaning is derived from extrinsic or “objective” factors such as state legislation and other, similar criteria that reflect the “consensus” views of the citizenry. 3 In this heuristic dichotomy, the Court is either majoritarian or counter-majoritarian; the Justices either base constitutional law on their independent and subjective interpretations 4 or they rely on extrinsic indicators to determine constitutional meaning. 5 In practice, however, this dichotomy is neither clearly evident, nor clearly applied, and a third approach—“New Majoritarian” Constitutionalism—has emerged. This model of majoritarianism accepts the traditional idea that constitutional decisions must be grounded in conventional lawmaking sources and that interpretations of the here and now; it exercises control, not in behalf of the prevailing majority, but against it. . . . [That] is the reason the charge can be made that judicial review is undemocratic.”). 2. Marbury v. Madison, 5 U.S. 137, 177 (1803). 3 . See generally BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION (2009) [hereinafter FRIEDMAN, WILL OF THE PEOPLE]; MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY (2004) [hereinafter KLARMAN, FROM JIM CROW]; JEFFREY ROSEN, THE MOST DEMOCRATIC BRANCH: HOW THE COURTS SERVE AMERICA (2006); CASS R. SUNSTEIN, A CONSTITUTION OF MANY MINDS (2009); Barry Friedman, Dialogue and Judicial Review , 91 MICH. L. REV. 577 (1993) [hereinafter Friedman, Dialogue ]; Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolution , 82 VA. L. REV. 1 (1996) [hereinafter Klarman, Rethinking Civil Rights ]. 4 . See THE FEDERALIST NO. 48 (James Madison), NO. 49 (Alexander Hamilton or James Madison) (finding necessary “some more adequate defense . . . for the more feeble, against the more powerful” and identifying a representative republic with a truly separate judiciary as one such defense, especially against the passions of the public controlling the government); 1 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 244 (3d ed. 2000) (describing the Supreme Court as “a principally counter-majoritarian institution charged with protecting the rights of individuals from democratic excesses”); see also LAURENCE H. TRIBE & MICHAEL C. DORF, ON READING THE CONSTITUTION 66 (1991) (noting that value choices are endemic to judicial interpretations of concepts like “liberty”). See generally JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS: A FUNCTIONAL RECONSIDERATION OF THE ROLE OF THE SUPREME COURT (1980) (arguing that the Supreme Court’s insulation from politics best enables it to protect minorities from the pressures of the majority and current events); MICHAEL J. PERRY, THE CONSTITUTION, THE COURTS, AND HUMAN RIGHTS: AN INQUIRY INTO THE LEGITIMACY OF CONSTITUTIONAL POLICYMAKING BY THE JUDICIARY (1982) (finding the Court, despite its lack of electoral accountability, to be essential to protect minority rights). 5 . See Obergefell v. Hodges, 135 S. Ct. 2584, 2612 (2015) (Roberts, C.J., dissenting) (arguing that the decision as to whether same-sex couples should be permitted to marry constitutionally lay not with the Court but “with the people acting through their elected representatives”); Boumediene v. Bush, 553 U.S. 723, 801 (2008) (Roberts, C.J., dissenting) (criticizing the replacement of “a review system designed by the people’s representatives” with one “defined by federal courts”); Klarman, Rethinking Civil Rights , supra note 3, at 17–18 (arguing that the Supreme Court rarely acts as a counter-majoritarian force, instead “identif[ying] and protect[ing] minority rights only when a majority or near majority of the community has come to deem those rights worthy of protection”); Suzanna Sherry, Issue Manipulation by the Burger Court: Saving the Community From Itself , 70 MINN. L. REV. 611, 613 (1986) (describing the Supreme Court’s invalidation of state or federal statutes as “enforcing its own will over that of the electorate”). 1036 IOWA LAW REVIEW [Vol. 103:1033 vague constitutional language should accord with broadly held, majoritarian positions. This approach, however, creatively uses traditional indicators to a far greater extent than others. Critical to new majoritarian constitutionalism is the recognition that state legislation is not the only indication of majority views. On the other hand, new...