Courts as Participants in “Dialogue”: A View from American States

A perennial topic of interest and debate is the role that courts play, as a descriptive matter, and ought to play, normatively, within any given polity, particularly with regard to enforcement of bills of rights. At least since Alexander Bickel’s influential 1962 book The Least Dangerous Branch, the legal academy has been “obsessed” with the “countermajoritarian difficulty” that Bickel posited. Like most political scientists, I believe the description of courts as countermajoritarian is considerably overstated, not least because of the impossibility of explaining precisely why the dominant political leaders of any polity would in fact tolerate genuine countermajoritarian “judicial supremacy” over matters deeply important to them. It is not surprising, then, that