The Countermajoritarian Difficulty Revisited: Theorizing Court–Party Relations in the United States

Political actors, scholars, and citizens have long worried that the United States Supreme Court poses a “countermajoritarian difficulty”: the concern that policy making by unelected judges undermines democratic governance. In political science, a prominent response has come from a school of thought known as “regime theory,” which contends that this concern is misplaced because the court acts in alignment with a dominant governing coalition in the elected branches. In this article, we revisit regime theory and argue that it relies on unstated scope conditions. Specifically, it best explains periods characterized by low levels of interparty competition and intraparty cohesion. Since the 1970s, however, both these conditions have gradually eroded. We develop a revised theory of court–party relations to account for changing party dynamics. Under contemporary conditions of high interparty competition and high intraparty cohesion, the court is aligned with one of two competitive party coalitions rather than a dominant governing coalition. In this context, the court can support its aligned coalition in distinct ways that are indeed countermajoritarian. To illustrate our theory, we trace the functions of Supreme Court decision making for its aligned coalition over three periods (1930s–60s, 1970s–90s, and 2000s–present) and show why normative concerns about judicial power as a threat to democratic governance are well founded in the contemporary period.