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Are Judges Sideshows? 10
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udges regularly describe themselves as neutral legal umpires but some- 13
Jtimes describe their colleagues as unaccountable tyrants. Partisan offi- 14
cials echo both stories, depending on whether they are describing allied 15
or opposing judges. Scholars often tell a third story, in which judges are 16
neither to be praised nor feared. Indeed, on this scholarly account, much 17
of the political conflict over judicial decisions is a waste of time. Because 18
the vast majority of such decisions are consistent with the public will, they 19
ordinarily do not make much difference. We have no reason to fear that 20
judges are arbitrarily imposing their own preferences on the country, but 21
neither should we expect them to heroically defend constitutional prin- 22
ciples against hostile democratic majorities. The lesson of a wide range of 23
scholarly literature on courts in the United States (and elsewhere) is that 24
judges will rarely try to do either of these things, and that when they do 25
try, they will rarely succeed. 26
Much of this literature can be traced to an influential 1957 article by 27
Robert Dahl, which contended that the Supreme Court almost never 28
challenges policies supported by the national governing coalition. After 29
all, the justices themselves are usually members of that coalition and thus 30
share its key priorities. Dahl emphasized that the Court had only rarely 31
invalidated federal statutes and that when it had done so, the statutes 32
themselves were usually either outdated or trivial; in other words, the 33
invalidated laws almost never reflected important priorities of the then- 34
governing coalition. Building on Dahl’s seminal account, Howard Gillman 35
(2002, 2006), Mark Graber (1993), Michael Klarman (2004), Terri Peretti 36
(1999), and Keith Whittington (2007) have argued that most exercises 37
of judicial review— even those that appear countermajoritarian at first 38
glance— are consistent with the preferences of the governing coalition, 39

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