This article records tradition as it has been passed down and reported. Its sources are not yet part of the atlas's verified catalogue.
Judicial review solves one problem and immediately raises another. If unelected judges can overturn a law passed by elected representatives, on what basis does that override count as democratic at all. The Yale law professor Alexander Bickel gave this tension its lasting name, the countermajoritarian difficulty, in his 1962 book The Least Dangerous Branch, arguing that when courts strike down legislation they are, in his words, exercising control not in behalf of the prevailing majority but against it. Bickel's phrase became the organizing question for decades of American constitutional theory that followed. One influential answer came from the legal scholar John Hart Ely, who argued that judicial review, properly used, is not actually anti democratic at all, so long as courts focus on keeping the channels of political change open, protecting voting rights and the rights of groups too politically marginalized to defend themselves through ordinary elections, rather than substituting judges' own policy preferences for the legislature's. On this view, courts reinforce representative democracy rather than undermining it. Other constitutional scholars have pushed back on Bickel's framing from a different direction entirely, arguing that the difficulty was never really about courts alone, since the United States Constitution embeds plenty of other counter majoritarian features, an unelected judiciary among them, but also a Senate that gives small states outsized power and an Electoral College that can separate the popular vote from the electoral outcome. Judicial review, on this reading, is simply the most visible instance of a design choice the framers made throughout the Constitution, favoring stable structural checks over pure, unmediated majority rule, not a unique aberration invented by the courts themselves.