THE HISTORY OF THE COUNTERMAJORITARIAN DIFFICULTY, PART ONE - THE ROAD TO JUDICIAL SUPREMACY

The apparent tension between judicial review and the democratic proces s-what Alexander Bickel dubbed the ''countermajoritarian difficulty''- has been the focal point of modern constitutional scholarship. At the same time, however, scholars have rarely examined the origins of the c ountermajoritarian difficulty. In this Article-the first of a three-pa rt series-Professor Friedman undertakes such an examination. Although countermajoritarian criticism of the Supreme Court has surfaced to som e extent throughout our nation's history, Professor Friedman's histori cal analysis identifies forts factors that tend to presage the promine nce of such criticism at any given time. By studying criticism of the Court during Jeffersonian Democracy, the Age of Jackson, and in the wa ke of the Dred Scott decision, he argues that an essential, bur often overlooked, factor is the extent to which the Court's decisions are re garded as binding-not only upon the parties to the case at bar, but up on future litigants and the other branches of the state and national g overnment as well Thus, Professor Friedman contends, when the Court is acting during a time of perceived (and actual) judicial supremacy, co untermajoritarian criticism will flourish. In the latter two Articles in this series, Professor Friedman will address the responses of the p olitical branches to the emergence of judicial supremacy and the event ual rise of the ''countermajoritarian difficulty'' as the central prob lem of constitutional scholarship.