Intro
Title Page
Copyright Page
Contents
1. Introduction
A. Courts and Democratic Dysfunction: Promoting Democratic Responsiveness
B. Responsiveness to Context and Limits on Judicial Capacity
C. Responsive Judging: Responding to Litigants (and Disappointed Parties)
D. A Sometimes View of the Promise of Judicial Review
E. Structure of the Book
Part 1 Democratic Foundations
2. Constitutions and Constructional Choice
A. Judicial Review and Constructional Choice
1. Abortion, sexual privacy, and same-sex marriage
2. Implied speech and equality rights

3. Structural social rights
4. An unconstitutional amendment doctrine
B. Constitutional Theory and Constructional Choice
1. Abortion
2. Sexual privacy and equality
3. Structural social rights
C. Why Courts? Constitutional Choice and Democracy
D. Ely's Response
E. Criticism of Ely's Approach
F. Representation-Reinforcement Beyond Ely
3. Defining Democracy and Democratic Dysfunction
A. Defining Democracy
B. Democratic Dysfunction: Antidemocratic Monopoly Power
1. Electoral monopoly
2. Institutional monopoly
3. Monopoly: Intent versus effect

C. Legislative Blind Spots and Burdens of Inertia
1. Legislative blind spots
2. Legislative burdens of inertia
D. "Deliberate" versus Interconnected Democratic Blockages
Part 2 Courts and Democratic Responsiveness
4. The Scope and Intensity of Responsive Judicial Review
A. The Legal and Political Legitimacy of Judicial Review
B. The Political Legitimacy of Constitutional Implications
C. Responsive Review in Practice
1. Abortion rights
2. LGBTQI+ rights
3. Implied rights to freedom of expression and equality
4. Structural social rights

5. Unconstitutional amendment doctrine
D. The Intensity of Judicial Review: Toward Calibrated Proportionality or Scrutiny
1. Calibrating judgments about limitations on expression
2. Calibrating judgments about discrimination
E. Deference and a Legislative Action/Inaction Distinction
5. Democratic Dysfunction and the Effectiveness of Responsive Review
A. Detecting Democratic Dysfunction
B. Countering Dysfunction
C. Responsive Judicial Review in Practice
1. Comparative LGBTQI + rights
2. Structural social rights
3. Unconstitutional amendment doctrine

D. Preconditions for Success
1. Judicial independence and a political tolerance interval for judicial review
2. Litigation support structure
3. Jurisdiction and remedial toolkit
6. Risks to Democracy: Reverse Inertia, Democratic Backlash, and Debilitation
A. Limits on Judicial Capacity and Legitimacy
B. Reverse Burdens of Inertia
C. Democratic Backlash
D. Democratic Debilitation
E. Judicial Prudence, Principle, and Pragmatism
7. Toward Strong-Weak/Weak-Strong Judicial Review and Remedies
A. Weakened Judicial Review
B. Why (and How to) Weaken Review