The story of democratic legitimacy that has long dominated American legal discourse is familiar and very simple: Legislators are politically answerable to voters and appointed judges are not. This accountability is conventionally said to supply the dispositive factor in allocating institutional roles. The idea that policymaking and political accountability must travel together forms the intellectual core of this idea and gives meaning to the derisive references to “legislation from the bench” that are so common in contemporary politics. To put the idea on a loftier academic plane, consider the words of Alexander Bickel, the patron saint of the so-called countermajoritarian difficulty:

Notice some significant characteristics of this approach. One is a single-minded democratic focus on periodic elections. This is characteristic of an approach that some have called “democratic minimalism,” which requires only “choosing rulers by elections,” and no more. Echoing in some respects theories associated with Joseph Schumpeter, this conception of democracy rejects theories that demand robust concepts of deliberation, participation, equality, or justice as aspects of democracy itself.