Our article “A Story of Judicial Deference to the Will of the People” is now available here.

One of the central and continual debates of constitutional litigation is how much deference courts owe the elected branches in determining the constitutionality of challenged laws. Much of this debate takes place in the abstract and focuses on reasons why the courts should defer. And we at CJE have spilled lots of virtual ink explaining why courts should generally not defer. Yet a critical and commonly overlooked part of this debate is how often courts actually defer in determining the constitutionality of legislation and how deference has increased, or decreased, since the founding era.

We at CJE decided to begin filling in the void of research. The research can now be found in a recently published law journal article. In this article we quantify how often judges actually defer to a legislature’s determination that a law is constitutional, and track how judicial deference has changed over time.

The problem with the “will of the people”

Before diving into the data, it is important to address—and reject—one of the main reasons given in support of broad judicial deference. It is often argued that legislation represents the “will of the people.” The idea is that since “the people” elected legislators as their representatives, the laws that a legislature enacts represents the “will of the people.” Under this view, a court declaring a law unconstitutional is can be seen as overturning the “will of the people.” The “problem” is then compounded by the fact that federal judges are not “responsible” to the people because they never have to face elections. This “problem” has been coined the “countermajoritarian difficulty” by Alexander Bickel.

This “problem” rests on one major assumption: laws represent the “will of the people.”  Law certainly should represent the will of the people. This is the basic idea of representative democracy. People elect their representatives, and their representatives enact the laws. If the laws are not to the liking of the people, then the people will vote in new representatives who will enact their will. As members of Congress “represent” the people, it is assumed that they listen to their constituents and enact laws favorable to them. Common sense teaches us that the representatives should do that because not doing what their constituents want could harm their reelection chances.

But we know, especially through public choice theory, that legislation often does not represent the will of the people. Rather, it represents the will of interest groups that can promise a cohesive voting block for the next election. In other words, legislation often represents not the will of the people but the will of interest groups. This is certainly not the case for every piece of legislation. Nor is it the case for every vote cast by a legislator. But it is the case often enough to rebut the idea that judges should defer to the judgment of the other branches simply because legislation represents the will of the people.

Even without the guidance of public choice theory, there would still be some issues with judges deferring to legislators’ determinations (based on the idea that legislation represents the will of the people) when determining the constitutionality of challenged laws. It is the role of the judiciary to check the will of the majority of the people.   In Federalist 78 Alexander Hamilton explained that it was the duty of the Supreme Court and any other courts that Congress might established “to declare all acts contrary to the manifest tenor of the Constitution void.” If the courts failed to do this, then “all the reservations of particular rights or privileges would amount to nothing.” But since that time, individuals have argued over what it means for a law to be contrary to the manifest tenor of the Constitution.

In short, one of the main reasons advanced for judicial deference is because the judicial branch is undemocratic—it is not responsive to the will of the people and it does not represent the will of the people. Inherent in this argument is that the legislature does represent the will of the people and is responsive to their will. But that is certainly not always the case. It also misunderstands the role of the judiciary as it is supposed to check the majority when it goes beyond the Constitution’s limits. That is, the point of the judiciary is that it is undemocratic and can hew to the Constitution without fear of reprisal when a majority of people or legislators decide to eschew the Constitution because it stands in the way of their policy goals.

Turning to the Data

We decided the best way to begin quantifying how often judges defer, and how that has changed over the years, was to survey the phrases courts use to justify upholding laws in deference to Congress and state legislatures. Surveying all such phrases would fill numerous volumes. But not all terms and phrases signaling deference are the same, and different phrases are used to signal deference for different reasons. The terms and phrases selected for this article focus on phrases that generally signal deference because of the belief that legislation represents the will of the people.

In the end, we settled on eight phrases: (1) will of the people; (2) judicial restraint; (3) will of the majority; (4) deference to the political branches; (5) defer/deference to Congress; (6) second-guess the legislature; (7) highly deferential; and (8) unelected judges. Broadly, the survey shows that the use of these phrases has been on the rise in recent years, even as the number of cases that federal courts—especially the Supreme Court—hear have decreased.

The general observation is especially true for the Supreme Court and the cornerstone term of this article: the will of the people. The Supreme Court has used this term since the founding. In the early years, the Court often, but not exclusively, used the phrase to refer to the Constitution as the will of the people. This changed in the mid- to late 1880s, especially with the appointment of the first Justice Harlan who employed the phrase repeatedly to reference legislation. By the mid-1900s, the Court used it to refer to free speech principles and the need for election accessibility for the government to know the “will of the people.” But in the past two decades the Supreme Court has used the term to refer to legislation more than any two decades other than between 1880-1900, when the first Justice Harlan was on the court. Together with the other phrases, this article demonstrates that at least rhetorically, the inclination of the Supreme Court has become increasingly deferential.

This data contradicts the common perception of the courts becoming less deferential. Members of both major political parties claim the Supreme Court is striking down too many laws, protecting too many “new” rights, and overstepping their place. This is likely due to some of the Court’s decisions in recent high-profile cases about guns, gay rights, abortion, and healthcare. But the view that the Court is doing “too much” is not new and was held by the losing side of cases dating to the founding—including by Thomas Jefferson. The focus in the mainstream on these high-profile cases has led to a distorted view of the Supreme Court and judicial deference.

The Supreme Court has become more deferential in recent years. Our article, along with its many handy charts, shows just this. This is concerning as it seems a major motivator for this deference is the idea that legislation is generally the will of the people and, as such, the Court should require a higher level of proof before striking it down. Our hope is that this article can provide some context, and some hard data, to discussions about judicial deference. It certainly will not end any debates, but hopefully it enriches the conversation and enables better arguments to be made about the extent to which judges should defer to legislatures in determining the constitutionality of challenged laws.

Adam Shelton is a fellow with the Project on Immunity and Accountability.

Anthony Sanders is the Director of the Center for Judicial Engagement.

In September 2021 CJE partnered with  the Liberty and Law Center at Antonin Scalia Law School to host a conference exploring whether the “Will of the People” actually exists. Check out the videos here.