Beyond the Counter-Majoritarian Difficulty: Judicial Decision-Making in a Polynomic World

Abstract

This Article examines the role of judicial deference in a modern democracy. As a general rule, judges defer to laws that are enacted by legislatures. The Author disputes the view that judges defer to legislatures because legislatures are more majoritarian than judges. In refuting this view, the Author describes and discusses the main decision-making processes of a modern democracy, including aggregation processes such as majoritarian politics, legislative processes, economic markets, and civil society, as well as normative systems such as judiciaries, bureaucracies, and professionals. The Author contends that in order to understand and appreciate the role of judicial deference, we must distinguish judicial reasoning from these other decisionmaking institutions. While the boundaries between these institutions are quite flexible, often overlapping, and sometimes incoherent, the distinctions between them need not (and can not) be disregarded if we are to understand and appreciate the implicit natures and individual characteristics of each. The Author suggests that re-inflating the collapsed distinctions between these institutions will set the groundwork for a new and improved analysis of each.