Jennifer Rubin, yesterday:

Let’s start with the premise that we are a constitutional democracy. We do not operate in a pure democracy in which Congress can outlaw free speech, invalidate contracts, deny women the right to vote or do other things contrary to the Constitution. If we had a pure democracy, we’d have no Bill of Rights to restrain the tyrannical impulses of the majority.

My problem with this? There is no such thing as “pure” democracy. There are lots of democratic variations that theorists have dreamed up or that political actors have put in place, either deliberately or by slow evolution. There’s direct democracy and representative democracy, majoritarian or anti-majoritarian or Madisonian democracy, participatory democracy and deliberative democracy, and many more, not to mention hybrids (so that direct democracy may or may not emphasize deliberation). None of these is “pure.” And the language of purity illegitimately sets up one particular type as superior — more democratic — than others.

The critical dividing line between democracy and other forms of government is whether or not ordinary people — in a democracy, citizens — are in charge. They, in some sense, choose what the government does. That choice can be delegated to others without making it any less democratic, and it most certainly does not have to be a simple majority decision in order to be fully democratic. 

What, then, of the Supreme Court? There’s nothing at all undemocratic about justices which are, after all, appointed by and confirmed by elected officials. That certainly makes the federal courts an example of indirect democracy, and there are solid arguments for and against more direct versions, but they certainly aren’t undemocratic. As political actors, the justices are on far firmer democratic ground than bureaucrats hired under civil service laws

The problematic aspect of the Court with respect to democracy has to do with temporal issues. The justices reflect, after all, the election results from whenever they were chosen and confirmed, so that we are now governed in part by the people who voted for Ronald Reagan in 1984 (after which he nominated Scalia and Kennedy), and the Senators elected in 1986, 1984, 1982, and 1980 who confirmed those justices. Normally, we don’t worry very much about temporal issues; no one worried very much that Barack Obama and the Democrats elected in 2008 were defeated at times by Senators elected in 2004; nor do we worry that the GOP majority elected in 2010 is regularly stymied by Obama and the Senators elected with him and in 2006. That is, we don’t think it undemocratic. But the Court poses a more extreme version of that problem, since large numbers of voters from the 1980s are long dead, while the youngest voters now were not even born in time for those elections. Does that really qualify as “undemocratic”? My intuition is that it does not, but it’s at least something to talk about.

But overall, no, judicial review — even fairly aggressive judicial review — isn’t undemocratic. It can be done well or poorly, and it can be nakedly partisan or not, but none of that makes it undemocratic. What the Court does in the health care case may hurt its reputation or enhance it, but either way it’s not a question of democracy.