Beyond the Counter-Majoritarian Difficulty: Judicial Decision-Making in a Polynomic World

This Article examines the role of judicial deference in a modern democracy. The Author disputes the view that judges defer to legislatures because legislatures are more majoritarian than judges. In refuting this view, the Author first outlines a theory of democracy as partnership. He then describes and discusses the main decisionmaking processes of a modern democracy, including aggregation processes such as majoritarian politics, economic markets, and civil society, as well as normative systems such as judiciaries, bureaucracies, and professionals, emphasizing the failure of each, taken alone, to satisfy democratic ideals. The Author contends that in order to understand and appreciate the role of judicial deference, we must distinguish judicial reasoning from these other decisionmaking institutions. While the boundaries between these institutions are quite flexible, often overlapping, and sometimes incoherent, the distinctions between them need not (and can not) be disregarded if we are to understand and appreciate the implicit natures and individual characteristics of each. The Author suggests that reinflating the collapsed distinctions between these institutions will set the groundwork for a new and improved analysis of each