Furthermore, Farber and Sherry note that in America's system of governance, majority rule is not limited only by courts. There are, for example, vast powers vested in institutions such as the Federal Reserve. Technically, the Federal Reserve is a creature of Congress; actually, its primary function is to insulate very technical and consequential decisions from gusts of popular opinion.
As Farber and Sherry say, most Americans are much more affected by what the Federal Reserve influences -- prosperity; protecting the currency as a store of value by controlling inflation -- than by anything the Supreme Court says about flag burning as free speech or Christmas displays as the establishment of religion. But as James Madison, the foremost Framer, said, ''There can be no doubt that there are subjects to which the capacities of the bulk of mankind are unequal.''
Ardent majoritarians may be scandalized by the fact that 51 senators from the least populous states, representing just 17 percent of the nation's population, could defeat a bill. But the Senate, which the Constitution's Framers did not intend to be popularly elected, was, said Madison, supposed ''to protect the people against the transient impressions into which they themselves might be led.'' The more purely democratic House does not even participate in such momentous decisions as the confirmation of judges or ratification of treaties.
Although properly modest judges seek to minimize it, there are, inescapably, policy-making dimensions of, or consequences from, what these unelected officials do. But as Farber and Sherry say, judges are chosen by a process -- nominated by elected presidents, confirmed by elected senators -- grounded in democratic accountability. And there is another problem with ''obsessing about the countermajoritarian nature of the court'':
''Judges are only part of the governance system; they are not our rulers. To assume that the whole system can be legitimate only if each part would be legitimate standing alone is to commit what economists call the 'fallacy of composition.'''
Finally, since Jefferson, no significant politician has flatly opposed judicial review. Even when the Supreme Court was most athwart public opinion -- striking down New Deal legislation -- voters sharply rebuked President Roosevelt for his plan to ''pack'' the court by enlarging it. So this is another powerful argument for the compatibility of judicial review with America's democratic values: the demos -- the public -- supports it.
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