Popularity Contest: Is an Independent Judiciary Compatible with Popular Constitutionalism?

Can the theory of popular constitutionalism—where the people have authority to shape constitutional law—exist alongside judicial independence? On the surface, these two ideas seem like contestants in a popularity contest: Popular constitutionalism embraces the will of the people in defining constitutional law, while judicial independence insists that judges disregard any and all external pressure in an effort to uphold the tenets of the Constitution even when they are unpopular. The contrast of these competing ideas is all the more evident with recent Supreme Court decisions such as Dobbs v. Jackson Women’s Health Organization, demonstrating a deviation from majority opinion in the name of the maxim that society must “let justice be done though the heavens fall.” This Note argues, however, that these notions need not be adversaries. Democratic participation is possible without undermining the rule of law or paving the way for tyrannical majorities by virtue of two potential devices for judicial review: a People’s veto and term limits.