GLIMPSES OF REPRESENTATION-REINFORCEMENT IN STATE COURTS.

• Author: Schacter, Jane S.
• Position: Symposium on John Hart Ely's "Democracy and Distrust: A Theory of Judicial Review"

The fortieth anniversary of John Hart Ely's singular book, Democracy and Distrust, offers an opportunity to appraise its legacy. There can be no question that Ely and the principles espoused in the book have had a landmark and lasting impact on constitutional scholarship. Ely's work has inspired numerous law review symposia, (2) and has been cited in a whopping 6,459 journal articles (3) and over 1,200 books, including many leading works of constitutional scholarship. (4) Nor is the book fading from scholarly view, as one might imagine it might in its fifth decade, and in an era marked by the ascent of constitutional originalism. In the last five years alone, the book has been cited in some 600 journal articles. (5) And the book is likewise woven into the teaching of constitutional law as a staple of casebooks. (6)

Moreover, the reach of Ely and the book have not been limited to scholarly domains. It seems fair to say that the principle of representation-reinforcement, in particular, informs key structural axioms of constitutional law. The clearest example is the idea embedded in tiers-of-scrutiny doctrine, that courts ought to view with special skepticism laws affecting politically disadvantaged groups. This fundamental institutional point was, of course, sketched out in the canonical footnote four forty-odd years before Ely wrote, (7) and the Supreme Court began to develop the idea of "political powerlessness" as a criterion for heightened scrutiny doctrine in the decade before Ely published his book. (8) By elegantly elaborating a rationale for these undeveloped ideas, however, Ely helped to more coherently ground modern equal protection doctrine. Both federal and state courts have cited Ely for the core institutional proposition that the Court's skepticism about policies adopted by the democratic process should increase in the face of political malfunctions. (9) In Ely's words, meaningful judicial review is most appropriate when "representative government cannot be trusted." (10)

I would like to explore an issue that has not been the subject of sustained scholarly attention: the role that the idea of representation-reinforcement has played in the domain of state courts and state constitutions. It is perhaps not that surprising that Democracy and Distrust hasn't been cited much in state courts. A Westlaw search turns up only forty-four citations in all state courts, compared to about three times that number in the federal courts." There are likely several reasons for that. One is not specific to Ely: The high priests of academic constitutionalism are simply unlikely to be on the radar screen of many state judges. But there is an Ely-specific explanation that virtually suggests itself. The principle of representation-reinforcement was crucially premised on a sharp distinction between institutions: Ely thought unelected federal judges could use his process-perfecting principles to police democracy-distorting flaws in the elected branches. While "elected representatives are the last persons we should trust" to identify such malfunctions in the democratic process, Ely wrote, "[a]ppointed judges... are comparative outsiders in our governmental system, and need worry about continuance in office only very obliquely." (12) For most states, however, that distinction does not hold because judges are also elected, (13) meaning they are either initially chosen by voters or appointed and then required to be retained by the voters at a specified interval. Even in states where judges don't face the voters at all, most provide for a measure of political accountability by requiring some form of approval by elected officials before reappointment, such as re-nomination by the governor or legislative confirmation. (14) These various forms of answerability mean that judges may risk their seats by virtue of controversial or unpopular decisions. (15) While rates of incumbent retention for judges are very high, (16) the threat of accountability cannot be discounted. As is true with incumbent legislators--who also typically win re-election--judges cannot know when an entrepreneurial opponent will seize on a controversial decision in ways that jeopardize the judge's retention. (17) This possibility is more plausible in the context of publicly salient decisions, especially in the realm of criminal law, where the evidence of electoral effects on judicial decision-making is strongest. (18) Thus, while incumbent judges enjoy a pronounced advantage, it would not be unreasonable to suppose that they might consider the reaction of voters (or a gubernatorial or legislative retention body, if appropriate) if they are perceived to be unduly solicitous of unpopular or subordinated groups. All this suggests that if, like Ely, one worries that the persistence of prejudice tilts elected officials against historically disadvantaged groups, judges might not be entirely immune to that dynamic.

But let's turn the inquiry around and consider Ely's assumptions about life-tenured federal judges. Their insulation from political accountability has hardly delivered an Elyan federal judiciary. While it is true that federal judges do not have to consider the possibility of losing re-election, being recalled, or seeing voters enact a ballot measure to reverse controversial decisions, there is nevertheless no evidence that unelected federal judges have been enthusiastic representation-reinforcers. Needless to say, the fact that there are somewhat more citations to Ely in federal than state court opinions is a far cry from any track record of systematic judicial protection of disadvantaged minorities. Indeed, on some accounts, the Supreme Court in recent years has inverted Elyan principles by according judicial protections to those already advantaged in the democratic sphere, while denying such solicitude to groups traditionally recognized as disadvantaged in the political process. (19)

Why did Ely's vision not materialize in the federal courts? There are surely many explanations, some of which implicate big-picture questions about courts and constitutionalism that are beyond the scope of this article. For purposes of my topic, I want to emphasize two in particular. First, the institutional ideas that shape Ely's principles are thin and illusory. Federal judges, on his view, can and will stand apart from the biases that infect the political process and be both able and willing to correct for them. Just about everything in that assertion has not borne out: federal judges do not magically occupy a separate sphere free of the biases that plague the political process; federal judges have not shown much willingness to try to play this role; the capacity of federal judges to do so, at least on Ely's terms, is dubious; and sometimes, the political process operates more favorably to disadvantaged minorities than does the judicial process. (20)

The questionable capacity of federal judges to practice Elyism leads to a second major problem: Ely's claim that judges could implement his principles without making controversial substantive judgments has always been an Achilles heel for the model. In an early and influential book review of Democracy and Distrust, Larry Tribe persuasively challenged the assertedly procedural nature of the principles. (21) It was always the case, and remains so, that Ely's model cannot be operationalized without making contestable substantive judgments about whom to protect and when, what counts as a political malfunction, what the underlying theory of democracy ought to be, and so on. (22)

The question I would like to explore is how state courts might fit into this picture. I will not argue that turning to state courts and state constitutions could or would solve these fundamental problems with Ely's theory. My claim is decidedly not that a change of venue will rescue Elyism in its original form. By the same token, it is tempting, but not necessarily correct, to write off the possibility that state courts could deploy some meaningful version of representation-reinforcing principles, if only in desultory ways. What falls within the category of representation-reinforcement in state courts, I will suggest, is less elaborate and less self-conscious than the principles outlined in Ely's theory. It is not likely that state court judges are setting out to deploy Elyan theory. But they are, in some circumstances, taking meaningful actions that protect groups that have a plain lack of political clout. My proposition is this: if we abstract out from Ely the idea that courts can take meaningful steps to overcome the systematic political disadvantages of certain groups, there are reasons to believe that some state courts and some state constitutions can be, and on occasion have been, usefully harnessed in service of that task, notwithstanding that most state judges are elected. I should underscore the focus on "some" courts because "state courts" are no monolith. State courts applying state constitutions are heterogeneous methodologically, ideologically, in terms of the constitutional text they apply, and otherwise. That variability is reflected in the Elyan state court activity I will describe.

I will consider three bodies of state constitutional law or other judicial activity on the part of some state courts that can be seen in the register of representation-reinforcement: (1) early state court decisions on the road to Obergefell and marriage equality; (2) state educational finance decisions; and (3) recent activity by state courts in the area of fines, fees, and bail. I will suggest that these episodes point toward some conceptual insights about Ely's theory. Most centrally, the examples show the possibility of some version of representation-reinforcement, but it is a version with marked differences from Ely's original model.

One obvious difference is the fact that most state judges are subject to some mechanism of political...