In 2022, the United States Supreme Court overturned a nearly fifty-year-old constitutional right to abortion. Whatever your view on the substance, the event raised a question that political philosophy has wrestled with for centuries: how can a handful of unelected judges override decisions that millions of citizens or their elected representatives have made?

This is known as the counter-majoritarian difficulty, and it sits at the heart of modern democratic theory. Judicial review—the power of courts to strike down laws as unconstitutional—exists in nearly every liberal democracy. Yet it seems to contradict the very principle democracy is built on: that the people should govern themselves. Understanding this tension reveals something important about what democracy actually requires.

The basic case against judicial review is disarmingly simple. Democracy means rule by the people. In a representative democracy, legislatures pass laws because voters chose them to do so. When a court strikes down a law, it substitutes the judgment of a small group of unelected, often life-tenured individuals for the judgment of the majority's chosen representatives. By what right?

The legal scholar Alexander Bickel coined the term "counter-majoritarian difficulty" in 1962, but the problem is older than that. When the U.S. Supreme Court first asserted the power of judicial review in Marbury v. Madison in 1803, critics immediately saw the tension. If the people are sovereign, then the people's representatives should have the final word on law. A court that overrules parliament or congress is, in a real sense, overruling the people themselves.

This isn't just an abstract worry. Judicial review concentrates enormous political power in the hands of individuals who face no electoral accountability. Judges are not required to campaign, build coalitions, or answer to voters. In many systems, they serve for decades. The democratic objection isn't that judges are bad people—it's that their authority doesn't flow from the consent of the governed in the way democratic theory demands.

Takeaway

The simplest challenge to judicial review is also the most fundamental: if democracy means the people decide, then any institution that can overrule the people needs an extraordinary justification for its power.

The strongest defense of judicial review starts with a sobering observation: majorities can be wrong. They can be wrong morally, and they can be wrong about what democracy itself requires. History is full of democratically enacted laws that stripped minorities of their rights—segregation laws, bans on interracial marriage, criminalization of homosexuality. In each case, courts eventually intervened. The question is whether those interventions undermined democracy or fulfilled it.

Defenders of judicial review argue that democracy is more than majority rule. It is a system built on preconditions—free speech, equal treatment, the right to vote, due process. If a majority dismantles these preconditions, it doesn't just make a bad policy choice. It damages the democratic process itself. Courts, on this view, don't override democracy when they protect fundamental rights. They preserve the conditions that make democracy possible in the first place.

This is sometimes called the "representation-reinforcement" theory, associated with legal scholar John Hart Ely. The idea is that judicial review is most legitimate when it protects the integrity of the democratic process—ensuring open channels of political participation and preventing majorities from permanently locking out minorities. Courts aren't substituting their policy preferences for the legislature's. They're acting as referees, making sure the democratic game is played fairly.

Takeaway

Democracy depends on more than counting votes. If courts protect the rights that make genuine self-governance possible—free expression, equal participation, minority protection—then judicial review may be not an exception to democracy but a precondition of it.

Even if we accept that some institution should protect fundamental rights, a deeper question remains: why courts? Constitutions are often written in broad, abstract language—"equal protection," "due process," "unreasonable search." Someone must decide what those words mean in practice. Judicial review gives that interpretive authority to judges. But judges bring their own backgrounds, philosophies, and blind spots to the task. So does everyone else.

Some theorists, like Jeremy Waldron, argue that legislatures are actually better positioned than courts to resolve deep moral disagreements. Legislatures are diverse, representative, and accountable. When reasonable people disagree about what "equality" requires in a specific case, democratic deliberation among elected representatives has a stronger claim to legitimacy than a judicial ruling. Giving courts the final say doesn't eliminate moral disagreement—it just moves the argument behind closed doors.

Others respond that the whole point of a constitution is to place certain principles beyond the reach of ordinary politics. Constitutions represent a society's most considered commitments, made in moments of reflection rather than partisan passion. Courts, insulated from electoral pressure, are better positioned to apply those commitments consistently over time. The debate isn't really about whether judges are smarter or more virtuous. It's about which institutional design best protects fundamental principles from the pressures of the moment.

Takeaway

The question of who interprets the constitution is ultimately a question about institutional design: which arrangement—judicial supremacy, legislative final say, or some shared model—best protects enduring principles while remaining accountable to the people those principles serve?

Judicial review doesn't have a clean philosophical answer. It exists in a permanent tension between two things democracies value: majority self-governance and the protection of rights that no majority should be able to revoke. That tension isn't a flaw in democratic theory. It is democratic theory—an ongoing negotiation about what self-rule really means.

The next time a court strikes down a law, the question worth asking isn't simply whether you agree with the outcome. It's who should have the authority to make that decision, and why. How you answer says a great deal about what you believe democracy is for.