Populist Primacy

Critics of the Roberts Court assert that the conservative justices are remaking American democracy to implement a corrupt Republican agenda. Conversely, the justices claim to be following originalism, with democratic transformation as an incidental side effect. These views share no common ground, and there is little space left for fruitful dialogue. This Article breaks this impasse by identifying the functional democratic theory driving the Court: populist primacy.

Populist primacy allocates power to the rank-and-file constituency and sweeps away institutions that moderate popular will. By positing that democracy consists of conflict between self-motivating actors, populist primacy adopts a structurally minimalist vision that prizes autonomy of the electorate above all other norms. Populist primacy offers an alternate justification of the Roberts Court’s muscular interventions into the American constitutional order. By recognizing that the Roberts Court advances a specific vision of legitimate democracy, this Article identifies the strengths as well as the unresolved tensions of its intervention.

The minimalist vision of democratic process advanced by the Roberts Court draws from a well-established philosophical heritage, but elicits long-running questions of how to vindicate normatively engaged judicial decision-making.