Sunday, June 12, 2016

The Return of John Hart Ely?

Andrew Koppelman

When courts declare laws unconstitutional, they provoke the familiar complaint that they are thwarting democracy: legislatures are elected and federal judges aren’t.  Now that the Supreme Court is likely soon to lurch to the left, conservatives are rediscovering this complaint.  But a newly liberalized Court is likely to do a couple of big things that will make America more democratic.

The death of Justice Antonin Scalia and the doomed candidacy of Donald Trump together are big news for Constitutional Law.  They mean that the conservative majority on the Court, which has been open to increasingly extreme claims, is gone.  Scalia will be replaced by a liberal, and probably so will 79-year-old Anthony Kennedy.  Time to think about how the Court’s liberals ought to handle their newfound power.

Scalia’s fundamental failure as a judge was that, while piously reciting platitudes about judicial restraint, he routinely distorted the law in order to reach policy results he liked, often blissfully unaware that he was doing that.  Conservatives now fear that the left will play the same game, using judicial power to achieve results they can’t get at the ballot box.  (See the recent flap over Mark Tushnet’s suggestion that constitutionalists on the left abandon their defensive crouch.)

Some of what the left is asking for, such as protection of abortion and gay rights, concededly involves disputable value choices.  But some major judicial interventions are long overdue and involve no value choice more controversial than a preference that the voters get to decide who rules them. 

In contemporary constitutional theory, Prof. John Hart Ely, who died in 2003, is widely cited but has few followers.  Ely worried as much as Scalia about judicial imposition of value choices, but unlike Scalia he wasn’t a hypocrite.  His work is urgently relevant today.

Ely proposed an approach that would avoid such choices, that would reinforce democracy.  In his 1980 book, Democracy and Distrust, he offered a constitutional theory in which "the selection and accommodation of substantive values is left almost entirely to the political process," and judicial review is concerned solely with "what might capaciously be designated process writ large -- with ensuring broad participation in the processes and distributions of government." 

The legitimate function of constitutional law, for Ely, was preventing incumbents from entrenching themselves in power.  When courts do this, they are not opposing the will of the people, but guaranteeing that the people will be able to control government.  The easiest cases are the malapportionment cases of the 1960s.  Unless districts have equal populations, it is easy to see how to make elections meaningless.  If you let me redistrict Illinois any way I like, I will divide it into three districts, one of which is my living room, another my kitchen, and the third the rest of the state.  After that I can easily outvote everyone else.  It’s not undemocratic to put a stop to that.  Similarly with speech restrictions that prevent criticism of incumbent officeholders.

Ely offers a minimalist theory of judicial review.  Even if you think, for democratic reasons, that courts should hardly ever strike down laws, they still ought to protect democratic government.

Now consider two familiar atrocities in contemporary politics, which, from our defensive crouch, we have long taken for granted that the Roberts court would never fix:  partisan gerrymandering and voter ID laws.  Both have the notorious purpose and effect of making it harder for Democrats to win elections, even if majorities prefer them.

Computer modeling has turned gerrymandering into a fine art by which democratic majorities can consistently be thwarted.  In the 2012 Congressional election, Democrats got 1.4 million more votes for the House of Representatives than Republicans, yet Republicans won by a 234 to 201 margin.  In North Carolina, they got 51% of the vote and 4 of 13 seats.  One analysis concluded that Democrats would need to win 55% of the vote in order to retake the House.

And then there’s voter ID.  One of the ugliest political practices in American history is the deliberate suppression of the black vote by neutral-sounding tricks like “literacy tests.”  Voter ID is yet another racist stratagem, adopted solely because black voters are less likely to have the necessary documentation at their disposal.  The voter fraud that these laws purport to remedy is nonexistent.  Judge Richard Posner, no lefty, has observed that these laws are “a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government.”  

This is not ordinary political hardball.  This is going over to the dark side.  Merely participating in elections or holding office does not make one a friend of democracy. 

So far from offering any remedy for these abuses, the Roberts Court licensed them, in its extraordinary gutting of the Voting Rights Act by a 5-4 margin in Shelby County v. Holder.  Many states immediately pounced on the opportunity to place new obstacles in the path of voters.  For the first time since the Act was passed, we are actually having a serious political fight about whether American citizens should get to vote.

Ely’s theory shows why there’s nothing undemocratic about courts putting a stop to all this.  The Roberts Court’s tolerant attitude toward both cannot be justified as a responsible exercise of judicial duty, no more than a Southern sheriff in the Jim Crow period passively watching a lynch mob.  Partisan gerrymandering and voter ID both aim to defeat democracy, and incidentally replicate the loathsome practice of using procedural tricks to deny blacks the vote.

They should be crushed.  In all likelihood, once the Court is not dominated by partisan Republicans, they will be crushed.  And there is nothing undemocratic about using the courts to crush them.

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