Fear and Loathing in the Judicial Process
There is an insistent tension between the law-making coalition and courts in a democracy. On the one hand, the law-making coalition is engaged in policy-making that is, to a greater or lesser extent, responsive to the will of some sort of political majority. On the other hand, courts are engaged in efforts to ensure that democracies do not indulge their majoritarian impulses to the point where substantive rights of a minority are eliminated. These impulses are inevitably conflicted. But there come times when the law-making coalition explicitly demands that the courts permit majoritarian impulses to run roughshod over minorities. When these demands are placed upon a democratic court, that court must decide whether its job is to ensure procedural, or majoritarian, democracy, or substantive democracy. This article argues that when faced with this choice, democratic courts may be expected to defer to majoritarian demands when the timing of violence directed at institutions is recent enough to trigger concerns about fear. When courts and judges acquire distance or habituation, their deference to the majoritarian-protective instincts of the law-making coalition dissipates.