The majority’s rules
History has moved forward in a rush since the disputed election of November 2000, leaving our memories of that peculiar event overshadowed by images of terrorism and war. Indeed, the significance of the election for domestic politics (in contrast to foreign affairs) now seems diminished to a level inconceivable two years ago. The legitimacy of George W. Bush’s reign as president has rarely been questioned; the election reform laws passed by Congress were so slight as to barely merit notice; the electoral college is still with us.
Yet that election did spark, or invigorate, a wave of debate among scholars and lawyers about the nature of American democracy and about the conservative Supreme Court that ushered Bush into the White House with its decision in Bush vs. Gore. Books and articles have poured off the presses on both subjects (the two are often linked), and they continue to do so. The debates are often lively, sometimes bitter, and occasionally couched in language accessible to civilians.
Legal scholars of a liberal persuasion are deeply disturbed, and sometimes downright apoplectic, about the high court. Mirroring the partisan shifts that have occurred in Congress and the White House, the court, led by Chief Justice William H. Rehnquist, is now dominated by conservative Republicans; and liberals fear that Rehnquist and his allies are rolling back many principles established between 1935 and 1975, when the court aggressively defended individual liberties, promoted democratization and civil rights, and sanctioned federal regulation of economic affairs.
Martin Garbus, a well-known trial attorney and 1st Amendment expert, is one of those who are worried. To Garbus, the Rehnquist court has become a dangerously activist institution, intent on pursuing an ultra-conservative agenda and willing to ride roughshod over precedents in place for decades. In “Courting Disaster,” he accuses the court of “seizing power” from elected legislators, overturning “the last sixty-five years of America’s constitutional law” and protecting “entrenched interests at the expense of unpopular minorities.” Despite the traditional conservative embrace of “judicial restraint,” Garbus sees little that is restrained about this court, which has overruled both federal and state laws at unprecedented rates -- effectively substituting its views and values for those of the people’s elected representatives.
“Courting Disaster” is a sprawling indictment that details case after case in which the court, often by a 5-4 majority, has diminished the rights of minorities and accused criminals, weakened the separation of church and state, and undercut the ability of the federal government to regulate business in the public interest. The book contains brief biographies of the justices, as well as some key appeals court judges who might one day join the Supremes; it also chronicles the highly organized efforts of the political right, beginning in the 1980s, to implant its own loyalists in the federal judiciary. All of which is quite laudable, particularly in a book aimed at a general, rather than scholarly, audience: The politics of an arcane-sounding decision can come alive if one knows a bit about the judges and how they got to the bench (which -- surprise -- was usually by courting politicians).
Yet “Courting Disaster” is so flaccidly written that readers will have to work hard to come away with a clear picture of what has occurred and why. The book, moreover, veers erratically between criticisms of decisions that the court has already handed down and warnings about what the court might do in the future -- particularly if President Bush has the opportunity to appoint more justices like his activist favorites, Antonin Scalia and Clarence Thomas. Such warnings may well be on target, but this jeremiad is too muddled to awaken the people to the dangers that might await them.
Jamin B. Raskin’s “Overruling Democracy: The Supreme Court vs. the American People” is a far more focused, successful book. Raskin, a law professor in Washington, D.C., with particular expertise in voting rights law, sees the conservative majority of the current court not simply as activist but as anti-democratic: The “underlying philosophy of the Rehnquist Court” is “hostility to popular democracy, especially when it involves empowerment of racial and political minorities.” An unabashed proponent of “participatory self-government,” Raskin maintains that “the urgent project of our time is to free popular democratic politics from the stranglehold of the Court.”
Raskin launches his argument, not surprisingly, with a spirited dissection of the majority opinion in Bush vs. Gore. It’s an easy target: As many critics have pointed out, the logic of the ruling is strained, even contradictory, and its substance is grounded in jurisprudential positions that the conservative majority has generally rejected in other cases. Raskin may be a bit hyperbolic in calling Bush vs. Gore “the least defensible Supreme Court decision in history,” but many court watchers would agree that it is a contender for the title.
Yet Raskin does not conclude, as have others, such as Alan M. Dershowitz, that the decision stemmed from dishonesty or judicial bad faith: He argues instead -- and more interestingly -- that it was an expression of the anti-democratic ideology that animates many of the court’s rulings. He finds this anti-democratic content in several features of the decision, the most important of which was the bald declaration that “the individual citizen has no federal constitutional right to vote for electors for the President of the United States.” That stunning sentence, which has received much less public attention than it merits, constitutes the court’s reading of Article II, Section 1 of the Constitution, which specifies that each state shall choose its representatives to the electoral college “in such manner as the legislature thereof may direct.” A state legislature can choose to have popular elections for presidential electors (as they all have done), but it can also rescind that decision (as Florida’s Legislature threatened to do in December 2000).
This literalist reading of Article II, Raskin argues cogently, was not inescapable: The court could easily have concluded that the constitutional transformation of voting rights of the 1960s (not to mention the entire trajectory of American political history since the 18th century) superceded the narrow language penned in the 1780s. Yet by reading Article II, Section 1 as the majority did -- which has now made our lack of a right to vote the law of the land -- the court could more easily conclude that there was no legal necessity for all of Florida’s ballots to be counted. If you don’t have a right to vote in the first place, then the state has less obligation to figure out what you meant by your poorly punched, chad-ridden ballot.
To support his contention that the decision in Bush vs. Gore was no fluke, Raskin traces the Rehnquist court’s anti-democratic impulses as they course through a wide array of decisions, including those affecting the racial composition of election districts, the absence of full voting rights in the District of Columbia and in overseas territories, education in public schools, campaign financing and the breadth of corporate power.
Most compelling, perhaps, is his treatment of the role of the court in institutionalizing a two-party system by making it difficult for new parties to get on the ballot, get into debates or nominate candidates who are also running on other tickets (“fusion candidates”). As Raskin correctly observes, there is nothing in our constitutional history that demands a two-party system, and the state laws that discriminate against third parties generally had their origin in collusion between the Democrats and the Republicans to quash upstarts such as the Populists or Socialists. Yet, despite that history, the court has repeatedly sanctioned state laws that favor the major parties against new contenders: As Rehnquist wrote in 1997, it is permissible for states to enact “election regulations that may, in practice, favor the traditional two-party system and that temper the destabilizing effects of party-splintering and excessive factionalism.” Raskin similarly eviscerates the arguments put forward to keep minor party candidates out of public debates, pointing out that it is absurd to require candidates to demonstrate sizable support (such as 15% in the polls) in order to participate in the only events through which they could gain such support.
One refreshing virtue of “Overruling Democracy” is that the book is not simply a lament or a complaint. Raskin’s vision is more upbeat, and he offers a host of proposals to make politics in the United States more democratic and vibrant, including basing elections on proportional representation rather than single-member districts and passing “clean money” laws (as some states have already done) to guarantee significant public funding to candidates who meet a minimal threshold of public support. He even makes a strong case for constitutional amendments to abolish the electoral college and to guarantee Americans the right to vote, urging us to think of the Constitution itself not as a holy relic but as a living document that invites change. Such reforms would not be easy to enact, as Raskin knows well, but they are surely worth pondering for anyone who is worried about the current state of American democracy.
Richard Posner is not particularly worried about contemporary American democracy, and he would probably dismiss most of Raskin’s ideas as outlandish. Posner, a federal appeals court judge and former University of Chicago Law School professor, is the intellectual godfather of the influential, conservative “law and economics” movement, which celebrates the virtues of markets while pressing for the use of economic analysis in legal decision-making. A prolific writer with rarely an unpublished thought, Posner delights in being learned, witty, unpredictable, curmudgeonly and condescending. One of his most recent books (three were published in 2001) was a perverse defense of the majority decision in Bush vs. Gore: Posner argued that the opinions published by the majority were wrongheaded but that the decision was correct because it was the best way to guarantee political stability and avert a crisis.
“Law, Pragmatism, and Democracy” is a pastiche of new writing and old, ranging from discussions of John Dewey, Joseph Schumpeter and Hans Kelsen (an Austrian legal philosopher -- I hadn’t heard of him either) to recapitulations of Posner’s views of Bush vs. Gore and Clinton vs. Jones, the Supreme Court’s decision that paved the way to the impeachment of Bill Clinton. At the center of this gaudily bedecked stage, however, is a political argument, an effort to rebuff legal thinkers and political theorists who, like Raskin, are critical of “our democratic system.” Posner’s acknowledged aim “is simply to make the case for contemporary American democracy.”
Posner builds his case by asserting that there are, in fact, two different conceptions of democracy coursing through public debate. “Concept 1” is idealistic and deliberative: Its advocates believe that the political order should encourage participation and deliberation in pursuit of the public good. Its ideal form might be that of Athens, where all citizens gathered together periodically to discuss public affairs and determine public policies. Posner has little patience for “Concept 1” democrats (a group that would include Raskin), depicting them as naive and excessively egalitarian, as well as covertly elitist: According to Posner, they envision political life as a university faculty meeting while harboring the hope that deliberative democracy will bring intellectuals to power.
“Concept 2” democracy, in contrast, functions more like a market. It does not envision democracy as “self-government” but as “government subject to electoral checks.” It is, to use one of Posner’s most slippery terms, “pragmatic,” reflecting “the untheorized cultural outlook of most Americans.” “Concept 2” democrats, such as Posner, do not particularly value participation and deliberation, and they believe that representative institutions are an efficient way to take care of the necessary business of government. Citizens can decide to vote or not every few years: They permit a political class to govern while devoting themselves to the more satisfying activities of private life and the acquisition of wealth.
Posner believes that “Concept 2” is the superior form of democracy and thus that criticisms of American political life are misguided. The United States is not a flawed approximation of the democratic ideal but rather a healthy exemplar of a different, more pragmatic ideal. Accordingly, Posner does not worry about the class skew in turnout (not voting is just like the decision not to participate in any other market) or corporate spending on elections (it reduces “extremism”). He likes the electoral college (because it averts the possibility of crises caused by a close popular vote) and detests proportional representation because democracy “is about picking leaders rather than about picking policies.” Referring to the 2000 election, Posner notes that a “Concept 2” democrat doesn’t “lose sleep” over the idea that a candidate could be elected who won fewer votes than his adversary; it would be far worse to have prolonged uncertainty about the election’s outcome. In Posner’s hands, Scalia and Rehnquist become democratic heroes.
These are slick arguments, and those who bridle at criticisms of American political institutions may find them appealing. Yet Posner’s case relies so heavily on assertion and suggestion rather than facts and logic that he is unlikely to convince anyone who does not already belong to his camp. It is, moreover, difficult not to sense that Posner’s theory building is really an abstruse, intellectual defense of a status quo that he happens to like -- a world in which Republicans dominate the judiciary (Posner was a Reagan appointee), corporations are only minimally fettered by government regulation and political power is shaped by financial clout. Although he derides “Concept 1” democrats as elitist, it is Posner’s vision that seems designed to preserve privilege and to prevent our political institutions from checking the inequalities of power and wealth inescapably generated by a market economy.
Indeed, Posner can barely register the existence -- contemporary or historical -- of inequality, discrimination and social stratification. In a remarkable footnote buttressing his dubious claim that 19th century America was “the most democratic nation in the world” and “the most diverse,” he observes that among American minority groups “only blacks” were “firmly subordinated.” That statement is false, as the experiences of Native Americans and Asian immigrants clearly attest. And how in the world could a federal judge, in 2003, say “only blacks”?