Reforming Review: Reconciling Majoritarianism with Marginalized Groups’ Rights in Constitutional Courts

Abstract

The recent 6-3 conservative majority on the United States Supreme Court has initiated an apparent sea-change in American constitutional law, from revoking the long-held right to abortion in Dobbs v. Jackson Women’s Health Organization to eroding the foundations of the administrative state under the newly-minted major questions doctrine in cases like West Virginia v. EPA. This has prompted a volume of popular critiques of the court’s legitimacy that are unprecedented in modern American history. However, critiques of the U.S. Supreme Court, a body of unelected judges which is widely recognized as one of the most powerful constitutional courts in the world, are not a new development, nor are critiques of the power of constitutional courts to conduct judicial review more broadly. This thesis asks whether there is a legitimate role for constitutional courts to review legislation in a democratic system of government, and if so, what that style of review ought to look like. It surveys existing legal theory on the subject and adopts a positive theory that judicial review is legitimate when it serves to protect the rights of groups that electoral politics marginalizes, but that democratic majorities must be able to constraint constitutional courts’ interpretations of their respective constitutions when those courts significantly deviate from popular understandings of what the constitution means. To determine under what conditions reforms that realize these implications are both desirable and feasible, this thesis fielded a survey experiment in the United States, Colombia, and India on how respondents’ subjective perceptions of both their constitutional court’s method of judicial review and their own subjective ideological agreement with the outcomes of that court’s decisions impacted their evaluations of the court’s legitimacy. Using a discrete choice experiment, it then inquired into how respondents favored different judicial reform proposals based on the proposer’s institutional identity, the stated motivation for the reform, and the content of the reform itself. This thesis concluded that judicial reform that increases the accountability of constitutional courts to the constitutional interpretations of the majority is desirable under conditions where both marginalized and non-marginalized groups agree that an important role of the constitutional court is to protect marginalized groups’ rights. It assesses that such conditions are present in Colombia, that the United States produced mixed results in this regard, and that increasing the majoritarian accountability of the Indian Supreme Court would likely have highly damaging impacts on the rights of marginalized groups in that country.