The most consequential political actors in many democracies never face an election. They wear robes, speak in footnotes, and wield a power that would make most prime ministers envious: the ability to nullify laws passed by elected majorities with a single ruling.
Constitutional courts—whether called supreme courts, constitutional tribunals, or federal courts—have evolved far beyond their original mandate of interpreting founding documents. They now routinely decide questions that previous generations would have considered purely political: the legality of abortion, the boundaries of executive power, the permissibility of economic regulations, even the validity of elections themselves. This is not a bug in democratic design. It is an intentional feature that has grown more muscular with each passing decade.
The counter-majoritarian difficulty
Legal scholars have long wrestled with what Alexander Bickel famously called the "counter-majoritarian difficulty": how can unelected judges overruling elected legislatures be reconciled with democratic principles? The standard answer—that courts protect minority rights from majority tyranny—has always been incomplete. Courts also protect property from redistribution, tradition from reform, and occasionally the powerful from accountability.
The real answer is more pragmatic. Constitutional framers, from Philadelphia to Bonn to Pretoria, deliberately created institutions that could check temporary majorities. They feared the passions of the moment more than they trusted the wisdom of voters. Courts became the designated adults in the room, empowered to say no when legislatures said yes too hastily.
The global expansion of judicial review
What began as an American innovation has become a global norm. After the Second World War, West Germany created its Constitutional Court explicitly to prevent another democratic collapse into authoritarianism. Post-apartheid South Africa gave its Constitutional Court sweeping powers to remake a society. The European Court of Justice evolved from a trade arbiter into something resembling a continental supreme court.
This expansion was not accidental. Outgoing governments often strengthen courts as insurance against their successors. International organizations encourage judicial review as a condition of membership or aid. And courts themselves have proven adept at expanding their own jurisdiction through creative interpretation.
The legitimacy question
The tension is sharpest when courts strike down policies with genuine popular support. Judges appointed decades ago, reflecting the political coalitions of their era, can frustrate contemporary majorities for a generation. The counter-argument—that constitutions exist precisely to constrain majorities—assumes those constitutions themselves were democratically legitimate and remain so.
Some democracies have experimented with alternatives. The United Kingdom long resisted formal judicial review, preferring parliamentary sovereignty. Israel's Knesset has repeatedly clashed with its Supreme Court over the boundaries of judicial power. Several Eastern European governments have attempted to pack or neuter their courts, with mixed results and considerable international criticism.
Our take
Constitutional courts are neither the guardians of democracy their defenders claim nor the judicial oligarchies their critics denounce. They are political institutions wearing legal clothing—powerful precisely because they pretend otherwise. The honest conversation democracies need is not whether courts should have power, but how much, over what, and with what accountability. That conversation rarely happens because it would require judges to admit they make political choices and politicians to admit they prefer hiding behind judicial robes. The robes, it turns out, are useful for everyone.
