Timely UT Conference on Counter-Majoritarianism

Sandy Levinson, in a post at Balkinization on legitimacy and the Supreme Court, writes: “The University of Texas Law School is hosting a two-day conference on “Countermajoritarianism and the Court” tomorrow and Saturday, sparked in part by an article in the recent Supreme Court Review by Rick Pildes suggesting that the “countermajoritarian difficulty” is alive and well, as witnessed most prominently in Citizens United, opposed by roughly 80% of the public. And, of course, there is much discussion of this with regard to the potential that five conservative Republican justices will vote to undo the most significant piece of domestic welfare legislation passed in the last 45 years. But a fascinating paper to be presented by Washington University of St. Louis professor James Gibson, “Public Reverence for the United States Supreme Court: Is the Court Invincible” (available through the web site hyperlinked above), suggests that the fact that a given decision, including undoing the Affordable Care Act, would arguably be countermajoritarian is near-irrelevant, for the following reason: The key question is whether a majority of the public believes the Supreme Court is legitimate, which means, among other things, having the authority to make binding decisions as to what the Constitution means. The answer, based on copious survey data, is yes.”

I’ll have more to say on this topic of legitimacy, ACA and the Supreme Court soon.  In the meantime, it is a good reminder of Rick Pildes’s fine scholarship which sparked this conference.

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