Judicial Activism and the Countermajoritarian Objection

In one line

The objection is that unelected judges overturn the decisions of elected legislatures, and it has to be answered rather than dismissed.

In the wording a student can write in an exam: the countermajoritarian difficulty is the objection that judicial review is an exercise of power by officials who are neither elected nor removable at an election, over decisions taken by those who are; judicial activism is the label given to the exercise of judicial power beyond the resolution of the dispute, by prescribing conduct, laying down general norms or supervising administration.

The objection, stated fairly

A legislature is elected, is answerable at the next election and may be turned out. A court is neither elected nor removable, and its members in India and the United States hold office until an age or for life.

When a court holds a statute void, it substitutes the judgment of a small number of people for that of the body the electorate chose. When it goes further and prescribes rules of general application, it legislates. When it supervises an administrative programme over years, it administers.

The objection is not that judges are bad or corrupt. It is that a democracy has assigned the making of contested value choices to a body that can be removed, and review reassigns them to one that cannot.

Three additional edges to it.

Constitutional entrenchment. In the United States, an interpretation of the Constitution can be reversed only by an Article V amendment, which is close to impossible; in India, an amendment can be reversed by the basic structure doctrine, so the last word lies with the Court in a way it does not anywhere else on this syllabus.

Institutional competence. A court hears two parties, has no research capacity of its own and cannot appropriate money.

Selectivity. A court that intervenes in some areas and not in others is exercising a political discretion without a political mandate.

The answers

The people wrote the constitution. Judicial review enforces the choice the constituent power made and does not displace it. On this view the legislature, not the court, is the body acting against the people's decision when it exceeds a limit the people imposed.

Representation reinforcement. Review is most defensible where the political process cannot correct itself: where the channels of political change are blocked, or where a discrete and insular minority cannot assemble a majority.

Rights are counted differently from votes. A right is a claim that does not depend on how many people share it.

The court can be answered. By amendment, by fresh legislation curing the defect, by appointment over time, and, in the United Kingdom, simply by declining to act on a section 4 declaration.