The Countermajoritarian Opportunity?: Courts, Rights, and the Accommodation of Difference

Over the past two decades, and in several regions of the world, there has been an expansion of judicial power. In this same time period, there has also been a growing interest in, and rather heated debate concerning, the relationship between democracy and nationalism. Scholars in all regions of the world, not least of all Europe, are searching for institutional arrangements that might effectively, and democratically, help polities best accommodate difference.

This article brings together separate bodies of literature on these two global developments: the expansion of judicial power, and the challenges of accommodating difference in democracies. The article proceeds in four steps. The first section presents claims from an important body of literature concerning the U.S. Supreme Court and American democracy and suggests why this literature is useful for understanding current trends in Europe. The second section shifts focus and discusses several “toleration regimes”—or ways of organizing difference—in the world, and their role in diverse societies. The third section then argues that there is a direct relationship between these specific toleration types, and the strength of judicial activism. Drawing these arguments together, the final section concludes that in Europe, for better or for worse, several activist constitutional courts are shaping democracy with adjudication, by moving countries toward specific toleration regimes and away from others.

Read full article (PDF)