The People v. Democracy. The Populist Movement against the Judicial Review

At first blush, constitutional courts and populist politicians have little in common. Constitutional judges are quintessential elites – they are, as Alexander Bickel famously put it, counter-majoritarian. That is their purpose and their predicament, their problem and their point.

Populists, by contrast, are often wary of minorities, who in their view threaten to undermine the polity’s identity and thwart what they term “the People’s” will. Populists rail against elites of all sorts, but they rail against constitutional judges with particular venom and vim. Populists and constitutional judges are sharply divided in their outlook and upbringing, their values and aims.

And yet, populists and constitutional courts frequently share something fundamental. Both, at times, defend their efforts through a “thick,” revisionist conception of democracy. Both are accused by their various detractors of being fundamentally antidemocratic. Both issue this response in the name of “the People.”