Context From The Talk
I want to return to a couple of Federalist Papers, Federalist 10 and Federalist 51. In Federalist 10 when James Madison is talking about the dangers of democracy, he says "The diseases most incident to republican government." He's conceding that republican government, democratic government is messy, and sometimes it brings real burden or harm to the public. He calls it the problem of faction. What solution does James Madison look to first and foremost? What's the remedy for these diseases that are a part of republican government? He says, "It's a republican remedy," I think it's very important. He doesn't say, "We behold a judicial remedy for the diseases most incident to republican government." He doesn't say, "I have an administrative remedy or a technocratic remedy or a judicial remedy." He says, "We have a republican remedy."
Madison, from the very outset of the Federalist Papers, is looking for ways in which these problems of republican government can be solved first and foremost, within republican government and not by stepping outside of government and looking for some sort of deus ex machina, some savior to come from outside of the system and fix everything. That's not to say the courts don't play a role in this system. We need to think about how the courts operate in that context, and similarly in Federalist 51, James Madison says "Each department should have a will of its own. Ambition must be made to counteract ambition. The interest of the man must be connected to the rights of the place." It's one thing to think about this in the context of Congress and the President, it's easy to see what he means by the presidency having a will or the legislative branch having a will of its own.
What does it mean for the courts to have a will of their own? What does it mean for the courts to be ambitious or ambitious enough to counteract the ambitions of the other parts of government? What does it mean for the interests of the justices or the judges on the court to be attached to the rights of that place? Again, it's much more self-evident to think about those questions in the context of the presidency or Congress. It's a real challenge and something I try to grapple within my own work and writings and teaching, on what it means for the courts to have a will or ambition in the meaning of Federalist 51. This is often referred to as the Counter-Majoritarian Difficulty, this idea that in the context of democratic government or republican government, we do rely on this part of government, the courts, the members of these at the federal level that are unelected, we rely on them to check the excesses of majoritarian government.
The people themselves choose this counter-democratic brake, B-R-A-K-E, on republican government. We need judicial independence precisely because there come moments where democratic majorities are very interested in rolling over either the rights of the minorities or their representatives are very eager to walk past the limits placed upon them by the Constitution.
Adam White, 2017 Hoover Institution Summer Policy Boot Camp