The D’oh! Of Popular Constitutionalism

This Review will be divided into three parts. Part I will both summarize The Most Democratic Branch and highlight some of the difficulties that the Supreme Court would face in implementing Rosen’s decision-making model. In particular, by allowing the Court to invalidate laws for a host of “antidemocratic” reasons, Rosen’s matrix does not constrain the Court in a predictable way. Part II will examine some of the empirical evidence about public attitudes toward the Supreme Court, including public awareness of Supreme Court decisions. I will contend that the Court cannot look to the people to sort out the Constitution’s meaning or otherwise constrain the Court. Finally, this Review will return to The Most Democratic Branch, considering why it is that Court decisions typically reflect majoritarian preferences. Specifically, through an abbreviated case study of the Rehnquist Court, I will argue that the Court is at once majoritarian and independent-able to do what it wants but usually not wanting to do more than is politically popular.