The Supreme Court has always been the scandal of American democracy. How do you justify the power that nine unelected judges — almost all of them, historically, white men — wield in a society that styles itself a democracy?

That scandal reached a peak in the last third of the twentieth century, when a combination of hard-right judicial theorists (Robert Bork and Antonin Scalia among them) and nervous liberals started worrying about what was called “the counter-majoritarian difficulty” or the “counter-majoritarian dilemma.”

The result of that reconsideration of the Court and judicial review was, among other things, the theory of constitutional interpretation that we call originalism.