In his latest post, Orin argues that the Supreme Court's high approval ratings don't have much relevance to our debate over the legitimacy of judicial review because the Court rarely strikes down popular laws and in particular rarely strikes down federal laws. Therefore, he claims:

If a law is very popular in one state or region but unpopular nationwide, striking down the law will both thwart state and local preferences and be popular in national polls. To my mind, this doesn't show that "the people" effectively "consented" to their law being struck down. Rather, it mostly shows that in a federal system, state and national opinion can and often do diverge.

To my mind, this is a significant revision, or at least clarification, of the position Orin staked out earlier in our debate. At that time, he argued that legislative enactments in general - not just federal laws - deserve heavy deference from judges because they have a special "legitimacy" derived from having a "closer connection to the consent of the governed." For this reason, among others, he argued that we must reject theories of constitutional interpretation that would lead judges to invalidate "lots of laws."

Now, Orin seems to be arguing that only federal laws, and perhaps only popular federal laws, deserve such deference. Thus, at least in so far as "legitimacy" is concerned, he should not object to the judiciary striking down "lots of laws" so long as those laws are either state laws or federal laws that lack strong majority support. This is an extremely important point. As I explain in this article, widespread political ignorance ensures that the majority of the public doesn't even know about most of the laws that legislatures pass, much less strongly support them. Orin may well be right to argue that the Court's popularity would decline if it started striking down very popular federal laws. However, the vast majority of legislation doesn't fall into that category. Orin's latest post thus implies that there is no harm to democratic legitimacy from striking down the vast majority of laws (though such invalidation might, of course, still be undesirable on other grounds).

I also disagree with Orin's implication in the latest post that striking down federal laws (as opposed to state laws) will necessarily undermine the Court's perceived legitimacy. The Court's approval ratings have not declined significantly over the last 15 years, despite the fact that the Court struck down many more federal laws during this period than did its immediate predecessors. With the exception of a few extremely important statutes, the majority of the public is unlikely to care much more about the invalidation of federal laws most of them have never heard of.