Contemporary debates about democracy have increasingly focused on the role of courts, prompting renewed questions about the function of judicial review in modern democratic systems.
Judicial review—the power of courts to strike down laws passed by elected officials—is often portrayed as undemocratic, an obstacle to the will of the majority imposed by unelected judges.
Alexander Kaufman, professor of Political Science at the University of Georgia’s School of Public and International Affairs, argues that this view fundamentally misunderstands the nature of a truly democratic political culture.
In his new book, Democracy, Liberty, and Judicial Review, Kaufman makes a forceful case that judicial review is not a threat to democratic governance but one of its most important safeguards. Far from undermining democracy, courts play a vital role in protecting the basic liberties that make democracy possible.
“The idea that democracy is simply majority rule is historically and philosophically mistaken,” Kaufman explained. “Pure democracy was long viewed as one of the most unstable forms of government. Democracy became a viable form of government only after it was recognized that democracy requires the constitutional protection of liberty.”
Beyond Majority Rule
At the heart of Kaufman’s argument is a challenge to what scholars call “majoritarianism”—the view that democracy simply requires implementation of the will of the majority. Critics of judicial review often argue that laws passed by elected representatives should not be overturned by an unrepresentative judiciary.
Kaufman responds by situating democracy within a broader framework of constitutional design. From the Bill of Rights to the principle of checks and balances, democratic systems were intentionally built to limit the power of the majority, particularly when the exercise of that power threatens fundamental rights.
“The purpose of a constitution,” Kaufman said, “is to restrict the power of the majority. Rights guarantees have no function if they do not do exactly that.”
Drawing on the work of thinkers such as John Locke, JeanJacques Rousseau, Immanuel Kant, and the American founders, Kaufman argues that democracy has never been understood as simple responsiveness to public opinion. Instead, democracy requires institutions that ensure minorities always have a real opportunity to become majorities.
Lessons from History
To illustrate the stakes, Kaufman points to some of the most consequential moments in American constitutional history. Jim Crow laws, poll taxes, and other forms of legal segregation were all enacted by elected representatives and supported by majority sentiment in many states. It was judicial intervention—often deeply unpopular at the time—that dismantled these systems.
“Those laws were simply the will of the majority,” Kaufman noted. “If we had accepted the majoritarian argument consistently, segregation and voter suppression would have remained intact far longer.”
Court decisions such as Brown v. Board of Education, which declared racial segregation in public schools unconstitutional, demonstrate a key distinction Kaufman emphasizes throughout the book: the difference between unpopular decisions and antidemocratic ones. While decisions like Brown were fiercely opposed in parts of the country, they strengthened democracy by enforcing the principle of equal protection under the law.
“An antidemocratic decision is one that undermines democratic participation itself—by allowing exclusion from voting or dismantling core rights,” Kaufman explained. “Unpopular decisions can still be democratically necessary.”
Why Courts Matter
According to Kaufman, the judiciary plays a role that no other democratic institution can fully replace by enforcing entrenched rights protections while remaining insulated from immediate political pressure. Legislatures, controlled by majorities, cannot restrain majority power.
“Without enforcement by an institution independent of popular opinion,” he said, “restrictions on majority power are meaningless.”
Kaufman warns that weakening judicial review would make profound rights violations not only possible but likely. History, he argues, shows how quickly rights can erode when their guarantees of liberty are treated as optional rather than absolute.
Defending Judicial Review—Not Every Court Decision
Importantly, Kaufman stresses that defending judicial review does not mean defending every court decision. In fact, he is sharply critical of contemporary jurisprudence that relies on weak reasoning or selective appeals to history.
His book argues that many of the most catastrophic failures in Supreme Court history—from Plessy v. Ferguson to Korematsu—were failures of restraint, not overreach. The Court erred by refusing to intervene when democratic values were at risk.
At the same time, Kaufman calls for comprehensive reform of the judicial confirmation process. An acceptable confirmation process must require full disclosure from nominees regarding their judicial philosophy and their approach to legal reasoning. Failure to provide satisfactory disclosure must constitute a sufficient basis for a vote to reject a nominee. A senator’s judgment that a nominee’s substantive views are unacceptably extreme must also constitute an uncontroversial basis for a vote to reject the nominee. Deceptive statements in the nominee’s disclosure—as revealed in opinions, concurrences, or dissents issued after the nominee has been confirmed—must constitute a complete and uncontroversial basis for impeaching and removing a Justice from the Court.
“The solution to bad judging is not abandoning judicial review,” Kaufman argues. “It is taking judicial reasoning seriously.”
A Democratic Necessity
Ultimately, Democracy, Liberty, and Judicial Review invites readers to rethink what democracy actually requires.
“Democracy is a complicated form of government,” he says. “It requires checks, balances, and restrictions on majority power. It cannot be reduced to simply satisfying the preferences of the majority.”
Kaufman’s book offers a clear and challenging reminder: protecting democracy sometimes requires limits on majority rule, and a serious commitment to principled, well-reasoned judicial review.
