Measuring the Countermajoritarian Nature of Supreme Court Decisions

Abstract

The countermajoritarian difficulty is central to constitutional theory. With that in mind, scholars have tested implications of the countermajoritarian difficulty by analyzing whether public opinion influences the Supreme Court, whether the Court is attentive to elected institutions, and whether the Court enacts policy change. The conclusion is that the Court is less countermajoritarian than the theoretical perspective assumes. We move beyond testing implications of the countermajoritarian difficulty by estimating countermajoritarian scores for cases the Court decided between 1946 and 2018. Our results suggests that the Court rarely engages in substantial countermajoritarianism, but a plurality of cases do display it to some degree. We explore this variation and find that the Court is more countermajoritarian when it is more institutionalized and has less ideological diversity. We probe the implications of countermajoritarianism and find that cases that are more countermajoritarian receive more media attention.