The Least Dangerous Branch?

Abstract

Courts with the power of constitutional review have become a central, and often powerful, institution in democratic politics. At the same time, the influence of courts is often seen to be in tension with democratic governance and popular sovereignty—a tension identified with the “countermajoritarian difficulty” by legal scholars. This chapter considers constitutional courts through the lens of public-choice theory from a normative and a positive perspective. First, I demonstrate that a public-choice perspective resolves the apparent tension between judicial review and popular sovereignty. Second, I offer a positive theory that conceives of judicial power as a consequence of the need to resolve derived problems of coordination in the (contested) application of constitutional norms to specific governmental actions. This perspective suggests that judges—like leaders more generally—exercise significant, but constrained, power.