Contemporary debates over recent Court decisions provide a rich context to weigh claims of judicial countermajoritarianism against the work of constitutional theorists, critical legal scholars, and political scientists who view the Court as a majoritarian body. In particular, the Court's decisions in Lawrence v. Texas, Gratz v. Bollinger, and Grutter v. Bollinger have reignited arguments concerning the propriety of judicial review. Prominent judicial commentators have described the decisions as important, and unexpected, civil rights victories from a markedly conservative Court. Liberal and conservative scholars and activists seem to agree with this description: mainline civil rights organizations and liberal scholars view the decisions as examples of the Court protecting and advancing the interests of disadvantaged groups, while conservatives, apparently accepting this portrayal, argue that these cases demonstrate that the Court has aligned itself with leftist and elitist interests, rendering its opinions incongruent with majoritarian public thought.
This Article challenges liberal and conservative assessments of Lawrence, Gratz, and Grutter. Although the outcome of these cases might indeed prove helpful to the agendas of social movements for racial and sexual justice, progressive scholars and activists should not receive these cases with elation. Instead, the research of constitutional theorists, critical legal scholars, and political scientists allows for a more contextualized and guarded account of and reaction to these decisions. Instead of representing extraordinary victories for oppressed classes, these cases reflect majoritarian and moderate views concerning civil rights, and the opinions contain many doctrinal elements that reinforce, rather than dismantle, social subordination. Only a sober reading of these cases can permit equality theorists to place the decisions within a broader movement that contests narrow conceptions of legal and social equality.
This Article explicates my thesis in three parts. Part I examines the body of works by constitutional theorists, critical legal scholars, and political scientists on judicial majoritarianism in order to construct an analytical framework for considering how Court doctrine reinforces dominant interests. The purpose of Part I is not to determine whether or not (or under what circumstances) the Court should be countermajoritarian, but instead to analyze substantial research that complicates, if not refutes, traditional understanding of the Court as undemocratic. Part II applies the analytical framework developed in Part I to Lawrence, Gratz, and Grutter and concludes that, contrary to popular portrayals, these decisions fortify, rather than aim to dismantle, social hierarchies of race, sexuality, class, and gender. Furthermore, Part II demonstrates that the Court explicitly grounds its rulings in these cases upon democratic considerations, thus lending support to arguments that contest countermajoritarian discourse. Part III utilizes social movement theory to explain the enthusiastic reaction of liberals to Lawrence, Gratz, and Grutter. Part III argues that civil rights organizations enthusiastically received these cases, despite their limitations, because for years these groups have conducted litigation and activism within a conservative legal framework that generally opposes affirmative action and gay rights agendas. Part III then offers strategic considerations for legal theorists and activists who seek progressive legal change before a majoritarian Court.
Darren Lenard Hutchinson, The Majoritarian Difficulty: Affirmative Action, Sodomy, and Supreme Court Politics, 23 Law & Ineq. 1 (2005), available at http://scholarship.law.ufl.edu/facultypub/395