THE "COUNTER-MAJORITARIAN DIFFICULTY" OF CLIMATE MODELS: JUDICIAL REVIEW AND EPISTEMIC AUTHORITY IN THE AGE OF THE ANTHROPOCENE

Abstract

The legitimacy of constitutional review has long been debated through the lens of the "counter-majoritarian difficulty." Climate change litigation intensifies this perennial problem, as courts are increasingly asked to intervene in complex policy areas based on scientific projections rather than traditional legal materials. This article argues that the use of climate models by courts presents a novel and deeper challenge to the separation of powers. When a court accepts a climate model's carbon budget as a constraint on state action, it does not simply check the majority; it subordinates democratic decision-making to the authority of a computational algorithm. Drawing on the emerging framework of "computational constitutionalism," this article analyzes how judicial reliance on models like those from the Intergovernmental Panel on Climate Change can effectively "constitutionalize" a specific scientific methodology, pre-structuring the outcomes of constitutional reasoning without explicit normative justification. This move subtly redefines the separation of powers by transferring epistemic authority from the political branches to the judicial branch, which then delegates factual authority to climate science. The article explores this dynamic through the lens of recent case law, including KlimaSeniorinnen v. Switzerland, where a carbon budget became a benchmark for human rights compliance, and contrasts it with the more cautious approach of the Dutch appellate court in Milieudefensie v. Shell. It concludes by proposing procedural safeguards and interpretive principles to maintain judicial legitimacy and democratic integrity while engaging with scientific expertise.