Ativismo e atavismo judicial

Leia The Birth of an Academic Obsession: The History of the Countermajoritarian
Difficulty, Part Five, de Barry Friedman. The Yale Law Journal, v. 112, 2002, p.153-259

Pontos importantes:

For decades, legal academics have struggled with the “countermajoritarian difficulty”: the problem of justifying the exercise of judicial review by unelected and ostensibly unaccountable judges in what we otherwise deem to be a political democracy. This was a largely liberal cademy raised on the legacy of the Warren Court and hopeful that those days of judicial liberalism would return. But after Bush v. Gore and numerous recent Supreme Court decisions striking down progressive congressional legislation such as Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) (striking down a provision of the Americans with Disabilities Act that imposed monetary liability on states); United States v. Morrison, 529 U.S. 598 (2000) (striking down the civil damages remedy of the Violence Against Women Act); Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000) (striking down a provision of the Age Discrimination in Employment Act imposing monetary liability on states); Alden v. Maine, 527 U.S. 706 (1999) (barring Fair Labor Standards Act claims against nonconsenting states in state courts).