Sunday, September 04, 2022

The Political Process, The Court, and Constitutional Amendment

Guest Blogger

This post was prepared for a roundtable on Can this Constitution be Saved?, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Wilfred U. Codrington III

The American constitutional system faces an Elysian[1] paradox: Over a generation, states have enacted a flurry of obstructive, suppressive, and distortionary election regulations, making the present the ideal climate for an engaged judiciary to view skeptically—and counteract—measures that ultimately frustrate a normally functioning political process. So, on the one hand we need an emboldened Court, enhanced judicial intervention to employ heightened scrutiny in its review of election laws. On the other hand, this is not a project for the modern Court. This Court has proven either unlikely to weigh in or, more increasingly, prone to intervene in ways that exacerbate the political process problems, namely by establishing anti-democratic doctrines,[2] abrogating precedent and limiting long standing legal principles,[3] and calling for complete judicial abstention to bind lower courts.[4] One might argue that the Court’s decision whether to intervene and the substance and scope of its invention can seem haphazard or unprincipled. But there is a fair measure of consistency here. Indeed, “the Roberts Court has never ruled in favor of plaintiffs alleging that an electoral regulation violates their right to vote.”[5] Far from erratic, this Court’s approach to resolving election law matters is reasonably predictable; it reveals a concerted effort by the justices to advance minoritarian rule and entrench conservative political actors in government. That is to say, the anti-Elysian principle is precisely what drives the Court’s decision making in political process cases. And there is good reason to believe that it will continue to do so.[6]

To be sure, this problem is certainly not unique to this period in history. In seminal cases, previous Courts have ruled in ways that advantage “their team,” by bolstering the power of partisan actors vis-à-vis the political opposition and insulating them from public accountability even as they flagrantly disregarded the will of the majority. Yet the members of the current Court have a keen understanding of the long, dark chapters in the story of American democracy, as well as an acute awareness of the structural devices that have impeded public sentiment from registering in elections, appointments, and policy more broadly. Furthermore, the justices know the importance of constancy in the law and the reliance interests that legal precedent creates for Americans. And, due to modern advances in research methods and the wide availability of legal scholarship and scholarship in related disciplines, the Court has a much better grasp of those factors that shape and track public opinion, including demographic trends and public polling. However, one might reasonably assume otherwise based on the Court’s decision making. When it comes to the election law, the modern Court is steadily narrowing the right to vote and political participation by uprooting doctrine and moving the jurisprudential goal post. Indeed, even once “familiar understandings of conservative positions, however recent, no longer hold across a spectrum of doctrinal and jurisprudential questions.”[7] Given as much, this Court’s anti-democratic proclivities, which are inimical to our representative system of government, seem particularly sinister.

Even worse, though, they are contributing to a constitutional deathloop. Political officials lacking a governing mandate are suffused in power perpetually and with the aid of unelected, life-tenured members of the Court. That power, we have come to learn, includes an unchecked ability to maintain control of the very same Court, including through unconventional, unprecedented, and nefarious means. All the while, conservative politicians and the justices they smuggle onto the bench insist that the cycle is fair and legitimate—that the national charter permits, and even requires, these outcomes. However, because neither group has any intention of rightwarding this careening ship, the problem will be with us for the foreseeable future—until the people recapture what is rightfully theirs or the vessel itself sinks. While the former course is undoubtedly preferable, past events in the United States and beyond make it crystal clear that both are possible.

Saving our national charter, then, requires an extraordinary remedy. It demands bold constitutional reform to address the two-prong problem of the democratically-deficient decrees and the utter lack of accountability for the jurists that issue them. The structures and foundational principles of election law, as well as the role of the judiciary, are not simply in bounds in the sorely needed public debate about constitutional amendment, they are the twin pillars essential to reconstructing, supporting, and preserving a system of government that is truly by the people.

Enshrining and elaborating on the right to vote is the first necessary constitutional ballast. Given the various disjointed components of the American electoral apparatus, establishing a firm right to the franchise and related political participation could—and should—consist of some grand reforms. First, it should abolish the current Electoral College system and embrace a direct election for president, thereby ensuring that the nation’s executive, at a minimum, commences their term of service with a popular mandate to govern. In addition, recent events suggest that eliminating the system of presidential electors would have the salutary effect of closing off a ludicrous yet critical path towards election subversion. The amendment likewise ought to ban partisan gerrymandering and reaffirm laws that prohibit racial gerrymandering, which would move our national legislature in the direction of true representativeness while similarly guaranteeing that federal lawmakers will also have to earn a governing mandate. And by fully enfranchising those citizens living in the District of Columbia and the U.S. territories, and re-enfranchising formerly incarcerated persons, a comprehensive right to vote can help the country come closer to achieving the ideal of political equality. The aforementioned proposals are, by no means, the limits of an amendment guaranteeing universal suffrage and political participation. But they are consistent with the trend of updating the Constitution to expand and promote democracy. Even more, they comprise the types of reforms that can revitalize the regulation of political contests, which, at present, consists of a rudimentary antidiscrimination framework, discrete constitutional provisions that have fallen into desuetude, and statutes that are being undermined by the judiciary.

The natural complement to a robust right to vote provision is an amendment focusing on Court reform. Among the most consequential features of our constitutional system is the vesting of political decision making of the highest order not in the more democratically chosen organs of government, but in a professional, unelected oligarchy. Increasingly, the Court has used this power to displace the considered judgment of elected officials, such that a proper recalibration of the judicial power relative to the other branches has become essential. Amendment is thus required to revamp this structure, both to curtail the sheer amount of authority that Article III provides federal judges—and the Supreme Court justices in particular—and to mitigate the countervailing imbalances that result in their systematic lack of accountability. Eradicating the Electoral College would be a good start here as well. It would indirectly effectuate a vital reform to the judicial appointments process to guarantee that jurists are chosen with some measure of democratic input—something that is lacking on the current Court given that all but one of the sitting Republican appointees were selected by a president who initially failed to win the popular vote. Imposing term limits on the justices would also address important legitimacy concerns. Restricting service on the High Court to a set number of years, combined with a plan for the regular replacement of retiring justices, would ensure that no single justice wields too much power for too long, while simultaneously injecting new, diverse blood into that important tribunal. Expanding the size of the Court could accomplish similar results and, at the same time, enable the Court to increase the number of disputes to be heard on its record-small docket. Finally, lowering the threshold for Congress and the states to override decisions rooted in the Constitution would empower the more democratically accountable actors to have the final say in the long run. These types of reforms fit well in our constitutional paradigm and culture. Historically, amendments have been enacted to rein in the judicial power by reversing legal decisions, restraining the Court itself, and emboldening non-judicial government actors.

Yet the prospect of constitutional amendment presents concerns that go far beyond a lack of ideas for reform. Surmounting the high bar to amend the Constitution is, of course, the elephant in the room. Given Article V’s requirement that lawmakers corral supermajority support at two stages, leading scholars contend that America’s is perhaps the world’s most difficult constitution to alter. The labor of amendment is, in a word, herculean. It has led many to diagnose the Constitution as constructively unamendable.

The procedural difficulty of reform is rivaled only by the antecedent (or subsequent) task of negotiating the precise language. The range and complexity of overlapping problems in election law suggests that a right to vote amendment would have to be technical and comprehensive, perhaps rivaling or surpassing the Twelfth, Fourteenth, and Twenty-fifth Amendments in length and detail. Poor drafting could result in text that is easy to circumvent or is otherwise inadequate to remedy the underlying concerns. In terms of judicial reforms, any amendment must contend with America’s uniquely judicial supremacist system, which guarantees that, in the end, an unchecked Court is left to interpret the revised provisions and any legislation passed pursuant to them. Indeed, there is ample historical precedent for the judiciary limiting or wholly ignoring constitutional revisions. The challenge, then, is at least twofold: One element requires deft navigation of an amendment process that affords political minorities veto power at several points. The other is crafting the provisions in a way that leaves minimal room for a small clan of jurists to diminish the final product, that is, the reforms’ intended substance and scope. There is no victory without the former, and any victory that does not account for the latter is one in name only.

Is our Constitution salvageable and, if so, should the American people come to its rescue? The answers, in reverse order, are yes and potentially. As scholars and practitioners, it is our duty to educate our pupils and the public alike about the reasons for maintaining our constitutional democracy, reasons not limited to the promotion of liberty, justice, and political equality; the safeguard of the common good; and the preservation of the rule of law. It is also our responsibility to explain that our Constitution—the document, doctrines, institutions, practices, and norms—is imperfect, which is why it includes means for its revision and reform. As students of constitutional and democratic theory and practice, we should realize and recommit ourselves to some key premises: that consent of the governed is a fundamental tenet of constitutional democracy; that constitutional legitimacy demands that both popular consent be valid and ongoing; that the Court does not have a monopoly on the Constitution, but an equal stake in it with the other branches of government; and that robust civic engagement and political participation by the people is essential to the project of American democracy. Yet saving the Constitution requires that the pipes of a functioning political process be unclogged, suggesting that this should be the start of a discussion about amending our way out of this Elysian paradox. One thing is for sure: we cannot afford to simply wait or wish our way out of it.

Wilfred Codrington III is Assistant Professor of Law at Brooklyn Law School. You can contact him at


[1] See, e.g., John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 103 (1980) (arguing that judicial intervention is appropriate when “the political market[ ] is systemically malfunctioning,” including when “the ins are choking off political change to ensure that they will stay in and the outs will stay out….”).

[2] See, e.g., Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205 (2020) (per curiam); Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321 (2021).

[3] See, e.g., Shelby Cnty. v. Holder, 570 U.S. 529 (2013).

[4] See, e.g., Rucho v. Common Cause, 139 S. Ct. 2484 (2019).

[5] Nicholas O. Stephanopoulos, “The New Pro-Majoritarian Powers,” 109 Calif. L. Rev. 2357, 2358 (2021).

[6] See, e.g., Merrill v. Milligan, 142 S. Ct. 879 (2022) (per curiam) (staying the injunction of a congressional map deemed to violate Section 2 of the Voting Rights Act order and granting certiorari); Harper v. Hall, 2022-NCSC-17 (N.C. Feb. 14, 2022), cert. Granted as Moore v. Harper June 30, 2022).

[7] Michael Kang, “The Post-Trump Rightward Lurch in Election Law,” 74 Stan. L. Rev. Online 55, 65 (2022).

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