DEMOCRACY, DISTRUST, AND JUDICIAL UMPIRING IN THE G-20 NATIONS.

• Date: 22 September 2021
• Author: Calabresi, Steven Gow
• Published date: 22 September 2021
• Author: Calabresi, Steven Gow

John Hart Ely's book Democracy and Distrust: A Theory of Judicial Review (1980) is one of the most important books on constitutional theory written in the last sixty years. A central claim to Ely's book is that the courts ought to police the political processes of change to help political outsiders. No one who I am aware of has examined this claim critically or with reference to comparative constitutional law. Previous authors and book reviewers have just assumed that since the Warren Court's one person, one vote cases were correct, it must also be the case as Ely says in his book that courts should play a foundational role in umpiring the political process. This assumption is too facile since the U.S. Supreme Court has incorrectly decided at least three of the four major umpiring of the political process cases it has heard since 1980.

The assumption is also too facile because Ely draws only on the American Experience, when today fifteen of the G-20 Nations are constitutional democracies with working systems of judicial review. I bring Ely up to date in this brief essay by discussing cases from the following nine G-20 Constitutional Democracies: 1) the United States since 1980; 2) the United Kingdom; 3) Germany; 4) Japan; 5) India; 6) Canada; 7) Australia; 8) Brazil; and 9) South Africa. I should note that countries I study are on all six inhabited continents; include rich and poor nations; include common law and civil law nations; and represent the Global South as well as the Global North.

My first conclusion is that Ely is insufficiently skeptical of the U.S. Supreme Court's actual practice in umpiring the political process. The Court gets wrong at least as many cases as it gets right. My second conclusion from studying the eight G-20 Nations listed above, along with the United States, is that they all umpire the political process to protect outsiders to at least some degree. This supports Ely's claim that courts do and should engage in umpiring of the political process while being more aware of the pitfalls of such a judicial role than they are. (2)

1. THE UNITED STATES OF AMERICA

   Since Ely's book was published in 1980, there have been four key cases in which Ely would have called on the U.S. Supreme Court to protect the politically powerless. Ely's view lost, unjustly, in all three of the four cases, and most law professors would think that Ely was wrong about the fourth case as well. Ely just assumes that if a case is about umpiring the political process and not a substantive due process case, the Court will decide the case correctly. The following four post-1980 U.S. Supreme Court cases suggest Ely is way too optimistic here.

   First, the U.S. Supreme Court decision in Shelby County v. Holder (3) is a classic umpiring of the political process case, in Professor Ely's terms. However, the political outsiders lost this case even though on the merits they should have easily won it. The issue was whether in renewing the Voting Rights Act of 1965 Congress ought to have revisited the data on which jurisdictions racially discriminate given the passage of forty-eight years to determine whether changes in their elections' laws should be subject to scrutiny and invalidation by the U.S. Department of Justice's Civil Rights Division (DOJ). The States argued that after forty-eight years of compliance with DOJ policy their election law changes should be made free of DOJ scrutiny. Congress and the President disagreed with the States involved and sought to retain DOJ preclearance of election law change from the covered States and jurisdictions.

   The original public meaning of Congress's Section 2 power to enforce the Fifteenth Amendment was understood by the Reconstruction Framers to be synonymous with the standard of review in McCulloch v. Maryland. (4) Any law that was "convenient to" or "useful" to enhancing Black American's voting rights was presumptively constitutional, even if the Supreme Court could dream up in its head a better law that would better protect voting rights. The Justices in Shelby County complained that the States and jurisdictions covered by the Voting Rights Act (VRA) in 2013 were the exact same ones that were covered in 1965 when the VRA was passed. The Supreme Court in Shelby County said that Congress should update its forty-eight-year-old data on voter suppression clauses, since many jurisdictions that racially discriminated in 1965 were no longer doing so.

   The States covered by the VRA in 2013 were: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia. (5) The ruling also affected some counties and townships in California, Florida, Michigan, New York, North Carolina, and South Dakota. (6) The States covered by the 2013 preclearance review comprised ten of the eleven states that purported to secede from the Union during the Civil War. These States also all maintained vicious systems of racial apartheid until they were forced to dismantle them in the 1960s. While in an ideal world Congress should have updated its 1965 data on voter suppression, there is ample reason from American history to think that racism runs very deep in those formerly Confederate States. Given that Section 2 of the Fifteenth Amendment gives Congress sweeping powers to pass convenient or useful legislation to protect Black voting rights, Shelby County is egregiously wrong.

   Chief Justice Roberts's opinion for the Supreme Court held quite rightly that there is an Equal Footing Doctrine, such that, in general, each State must be treated like every other State. The exception to this doctrine, however, comes from the clause in Article IV, Section 4, which says that "[t]he United States shall guarantee to every State in this Union a Republican Form of Government." In Texas v. White, (7) the Supreme Court upheld the constitutionality of congressional Reconstruction whereby the eleven Confederate States were carved up into military districts, subjected to martial law, with a General of the Union Army in total command, so that a Republican Form of Government could be formed in them. The Confederate States were only allowed to re-enter the Union once Congress had: 1) approved of their new State constitutions enfranchising Black voters as being "Republican in form" and 2) once all eleven Confederate States had ratified the Fourteenth Amendment. The Equal Footing Doctrine obviously did not apply to Reconstruction and quite rightly so. The 1869 Supreme Court decision in Texas v. White is a longstanding, foundational Supreme Court precedent that limits the scope of the Equal Footing Doctrine.

   From about the 1890s until the passage of the Voting Rights Act of 1965, Black Americans were systematically deprived of their constitutional right to vote. The NAACP estimates that only five million Blacks voted in the presidential election of 1960 (8) out of a total U.S. population of 179,323,175 (9) There were 26,898,476 Black Americans in 1960. (10) It is obvious from these numbers that the vast majority of Black Americans were disenfranchised in the 1960 presidential election, which is why the Voting Rights Act of 1965 was passed. It is also evident from extensive congressional hearings that most of this voting rights discrimination against Black Americans was occurring in the eleven former Confederate states.

   A Republican Form of Government is one in which all citizens can vote easily. Congress had the authority to require preclearance review by the Justice Department in the formerly Confederate States because they were still violating the Guarantee Clause one hundred years after the Civil War, and they were now violating the Fifteenth Amendment as well, by denying Black Americans the right to vote. The Equal Footing Doctrine, which is a real doctrine, did not apply to the First Reconstruction of the South in the 1860s, and it obviously does not apply to the Second Reconstruction of the South in the 1960s. It is up to Congress not the Supreme Court to decide when the Second Reconstruction should end. This is made clear by Luther v. Borden, (11) which suggested in dicta that the political branches of the federal government had exclusive power over Guarantee Clause cases. Shelby County v. Holder is a major blunder by the Supreme Court that calls Ely's argument that courts ought to be umpires of the political process into question.

   Another major blunder the Supreme Court has made in umpiring the political process was its year 2000 decision to settle a presidential election in Bush v. Gore. (12) My own disagreement with Bush v. Gore has been published elsewhere, (13) and there is no need to repeat here what I said there. The umpiring of the political process in Bush v. Gore sapped the Supreme Court's legitimacy and President George W. Bush's legitimacy in a way that makes one think that courts are not, contra Ely, ideal, neutral umpires of the political process. Strikingly, the Supreme Court, inferior federal courts, and the state courts all went out of their way unanimously to avoid umpiring the hotly contested 2020 presidential election between Joseph R. Biden and Donald J. Trump. Perhaps, the Supreme Court and other courts felt burned by the pushback they encountered in Bush v. Gore.

   A third judicial umpiring case that has arisen since the publication of Democracy and Distrust in 1980 was Rucho v. Common Cause, (14) a case in which a five to four majority of the Supreme Court held that cases challenging the gerrymandering of state congressional and state legislative districts were always nonjusticiable questions. In Baker v. Carr, (15) Justice William J. Brennan Jr. held that the one person, one vote cases were justiciable over a heated dissent from Justice Felix Frankfurter that they would land the Supreme Court in a political thicket. In Rucho v. Common Cause, Chief Justice John Roberts essentially wrote Justice Frankfurter's dissent into the governing caselaw of the Supreme Court in...