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.