Publication Title
California Law Review
Volume
113
Page
2225
Year
2026
Abstract
Professor David Strauss attributes the U.S. Supreme Court’s reactionary jurisprudence to a breakdown of elite consensus. He observes that lawyers and judges disagree about the proper “victims” of our political process: Are they Black, Brown, and LGBTQ+ people or, instead, Whites, Christians, and gun owners? Strauss worries the jurisprudential approach that emerged from Carolene Products now allows for judicial intervention on behalf of groups loaded with political power. Even then, he insists on the classic liberal defense of the courts: that courts serve as an important if imperfect check against the majoritarian domination of minorities.
In this Essay, we identify as critical to such defenses the unstated conjecture that elites are more enlightened than popular majorities—the conjecture that, for all of its limitations, juristocracy is still preferable to “crude” majoritarianism. The corresponding portrayal of ordinary people as relatively bigoted, irresponsible, or ignorant—read: unable to self-govern—animates liberal politics in the United States more broadly. We argue that confidence in the comparatively reactionary character of ordinary, working-class, and poor people in the United States is in no way proportional to the evidence. That confidence reflects less a grounded finding, and more ideology or faith in the need for elite rule. To allow these commitments to go untested is particularly dangerous in the face of the authoritarian politics of hyper-concentrated wealth and power that has become a feature of contemporary life. Such discourse diverts attention from the fundamentally undemocratic nature of the U.S. state and allows governing elites to blame “the people” for problems elites have a disproportionate hand in creating.
Recommended Citation
Amna A. Akbar and Ryan D. Doerfler, Imperfect Guardians, 113 Cal. L. Rev. 2225 (2026), available at https://scholarship.law.umn.edu/faculty_articles/1195.
