1/ Thoughts on @MadKhosla's provocative claim at the end of today's oped: "The legitimacy of courts was never built on popular authorization from the people. It was built on the promise of keeping representation in check and protecting the people from the extremes of politics."
2/ It is a descriptive or prescriptive claim? Unclear. And what kind of legitimacy was built either way? It seems like normative legitimacy is meant. But it would be interesting to find out to decide what is at stake in challenging judges today. nytimes.com/2020/09/09/opi…
3/ To begin w/, it is really credible that we would want to root judicial power entirely beyond popular authorization? Madhav's adviser Richard Tuck might have something to say about that-at least insofar as we would want to trace any forms of "government" back to "sovereignty."
4/ More broadly, within arguments for the constitutional allocation of governmental power we can notice a drift over the last century from anti-democratic to pro-democratic justifications of court legitimacy.
5/ What seems remarkable and refreshing is that Madhav returns to the openly anti-democratic rationale, as in Muller v. Oregon's appeal (1908) to "limitations upon legislative action, ... giv[ing] a permanence and stability to popular government which otherwise would be lacking."
6/ By contrast, Ronald Dworkin aside, for decades it has been bad form to justify judicial power without claiming that it is (allegedly) democratic: Bruce Ackerman's moments, J.H. Ely's rep reinforcement, Robert Post and Reva Siegel's "democratic constitutionalism."
7/ As a matter of intellectual history, it will be interesting if events around the world and the rise of "populism" (as Madhav labels it) leads to a return to the status quo ante of anti-democratic rationales for court empowerment: the people should not rule themselves entirely.
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