Abstract
The tension between judicial review and democratic principles remains the most significant problem in modern constitutional theory. Yet this tension may be resolved in the context of “political stalemate.” Political stalemate arises when both parties in a two-party system find it electorally advantageous to ignore a given political issue, even when majorities favor reform on that issue. This can occur when (a) majorities favor reform as only a secondary preference, and (b) a swing-voting minority exists which has intense preferences against reform. When political stalemate materializes, judicial activism toward reform serves democratic ends primarily by breaking the stalemate and encouraging open contestation on the issue. These are functions that electoral mechanisms simply cannot perform, and they point toward a democratic defense of the Supreme Court's decisions in Griswold v. Connecticut and Lawrence v. Texas.
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For helpful comments and suggestions, the author thanks Jack Balkin, Robert Burt, Ken Scheve, Ian Shapiro, Angelica Bernal, Danilo Petranovich, Julia Peck, and several anonymous reviewers for Polity.
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Chinn, S. Democracy-Promoting Judicial Review in a Two-Party System: Dealing With Second-Order Preferences. Polity 38, 478–500 (2006). https://doi.org/10.1057/palgrave.polity.2300071
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DOI: https://doi.org/10.1057/palgrave.polity.2300071