Countermajoritarian Difficulties and the Political Branches: Contesting “Elections Have Consequences”
by Neil S. Siegel, David W. Ichel Professor of Law and Professor of Political Science, Co-Director of the Program in Public Law, and Director of the DC Summer Institute on Law and Policy, Duke University School of Law
Some questions in American law and politics are timeless, but at certain historical moments asking them is especially timely.
The improbable election of Donald Trump resulted almost immediately in widespread protests around the nation. His victory subsequently inspired letters condemning his conduct and that of certain of his executive branch nominees; a sit-in by the NAACP at the state office of one of those nominees; boycotts of his Inauguration by many Democratic members of Congress; more protests and violence in the capital on Inauguration Day; and a Women’s March the next day that drew large crowds. Trump’s approval rating upon taking office was the lowest for any incoming president over the past four decades. Protests of his presidency and angry town hall meetings hosted by Republican politicians have since become commonplace.
Those responses are no doubt attributable in part to disagreements with what Trump and congressional Republicans promised they would do and are doing. It does not appear, however, that such responses reflect only substantive disagreement. There is also widespread frustration and anger that national political institutions have failed the majority of Americans—that unified Republican government will mean great changes in policy and tone that most Americans did not vote for and do not want. Thus the signs at the Women’s March that “he lost the popular vote” and the denunciations of the “fucking Electoral College.” Thus the debate that will not end over the relative sizes of the crowds at Trump’s Inauguration and at the Women’s March, a contest that appears to be a proxy war for which side won the election in the numerical, democratic sense, as opposed to the technical, legal sense.
What is one to make of Americans who display such signs, or condemn the Electoral College, or mock the size of the crowd on Inauguration Day? Those Americans appear to be lodging a process objection, in addition to a substance objection. It is democratically (as opposed to legally) illegitimate, they insist, for the electoral process to result in the election of officials who generate policy outcomes that do not reflect majority will in the nation.
The link between the electoral process and policy outcomes is the sum of two sub-links: between the electoral process and elected officials and between elected officials and policy outcomes. Each sub-link is problematic from the standpoint of democratic legitimacy; each creates a legitimacy gap. Key features of the electoral system are countermajoritarian, so that presidents and parties in control of Congress may lack the endorsement of most Americans. And regardless of whether they represent a national majority, elected officials and their appointees may pursue countermajoritarian agendas.
What can be done to address these legitimacy gaps? Inspiration and resources can be found in the constitutional theory literature on the countermajoritarian difficulty and the broader democratic culture whose anxieties it reflects, which have sought to place meaningful limits on the conduct of judges. Like President Trump, for example, federal judges have legal authority to act even though they may lack the political authority that comes from earning the support of a majority of Americans. And like Trump, judges may act in countermajoritarian ways.
Countermajoritarian theory and American expectations of judges suggest several approaches to managing the countermajoritarian difficulties facing the political branches. One important strategy is a multi-generational scholarly and cultural project of emphasizing constraining conceptions of a judge’s role. Ideas contributing to this effort include (not always or invariably, but often enough to be potentially meaningful) an emphasis on “judicial restraint,” a sense of proportion, the practice of moderation, fidelity to precedent or past practice, respect for institutional conventions of judicial conduct, sensitivity to majority will, discretion, timing, tact and the virtue of judicial statesmanship—of taking some account of the conditions of a court’s own public legitimacy. Those ideas likewise include a condemnation of judicial willfulness or “activism”—of unjustifiably assertive countermajoritarian action.
It has seemed worthwhile, in light of the “countermajoritarian difficulty” named by Alexander Bickel, to cultivate a professional and popular culture of external and internal constraints on judges. It is similarly worthwhile to promote a culture of meaningful constraints on presidents and members of Congress who may come to power notwithstanding a lack of majority or plurality support, and who may seek to implement countermajoritarian agendas.
Fully appreciating political branch countermajoritarianism should affect how different actors execute their responsibilities. Politicians who are tempted to act in countermajoritarian ways might consider not simply the legal authority that vests as a consequence of formal electoral processes, but also the political legitimacy that can be acquired only from representing the commitments of at least a majority of Americans. Although most politicians may be unlikely to practice normative self-restraint much in the near term, law teachers might consider operating within a longer time horizon and instructing future politicians—not just future judges—that a restraining role morality applies to their own countermajoritarian elections and inclinations.
Most immediate and practical is an implication for practices of political resistance. Few would accept aggressive judicial behavior lying down in virtue of assertions that “appointments have consequences” or “it’s just judging” for Justices to advance ideological agendas. Likewise, the political opposition should not accept assertions by those in power or their supporters that “elections have consequences” or “it’s just politics” for politicians to advance ideological agendas. Nor should the opposition limit its pushback to considering whether a president is “legitimate” (which does not distinguish legal from democratic legitimacy), or whether the administration has a “mandate” to govern (which risks missing whether a politician has secured even majority support, let alone supermajority support).
Instead, the opposition should vigorously speak the language of democratic legitimacy to partisan power whenever politicians seek to justify acting in countermajoritarian ways by invoking the outcome of the previous election. The undemocratic reality of political branch countermajoritarianism, if fully internalized and emphasized, can catalyze and legitimize political resistance by providing a constitutional anchor point for its forceful expression.