In one of his Wednesday posts, Robert pooh-poohs arguments that the Court “striking down a popularly enacted law” is undemocratic or anti-democratic. He is right to note that the Constitution is itself a democratically enacted charter, of superior authority to ordinary legislation.
But if Robert was aiming his argument at me (which I suspect because he uses me as his example when hypothesizing a flagrant taking of my home), he shot wide of the mark. In all my discussions with Gerry and Robby last week, I never made the argument that all exercises of judicial power to invalidate legislation are undemocratic. Our entire set-to began with a disagreement about how to define “judicial activism,” which I said had to include two things: getting the Constitution wrong and striking down a duly enacted law.
Of course, whenever the Court acts consistently with the Constitution, there is no violation of democratic principles, whatever it does. On the other hand, sometimes when the Court acts contrary to the Constitution, and the result is that a law is upheld, the Court is acting democratically so far as current majorities are concerned, but might be said to be acting undemocratically in the larger, constitutional sense that Robert is talking about.