Modernization and representation reinforcement: an essay in memory of John Hart Ely.

• Author: Strauss, David A.

INTRODUCTION

1. MODERNIZATION: FOUR EXAMPLES A. Sex Discrimination B. Substantive Due Process C. Capital Punishment D. Brown v. Board of Education II. IN DEFENSE OF THE MODERNIZING MISSION A. Unprincipled Retreats? B. Amateur Political Science or Common Law? INTRODUCTION

   The courts, in interpreting the Constitution, should not override the will of the majority in the name of values that supposedly transcend majority rule. Instead, judges should try to make representative democracy more democratic. They should try to make democracy work according to its own underlying principles. That is the simple, powerful thesis of Democracy and Distrust: (1) the courts should be in the business of reinforcing and perfecting, not second-guessing, the work of representative government.

   Democracy and Distrust is a great book because it takes this thesis seriously and develops it unflinchingly, with the absolute intellectual integrity that was one of John Ely's defining characteristics. While the theory set out an ideal, not a purported description of what the courts actually do, Ely found much to admire in the work of the Warren Court, in particular. One of the signal contributions of Democracy and Distrust was its highly influential defense of the Warren Court: in its most important decisions, Ely convincingly argued, the Warren Court was reinforcing democracy, not just implementing its own constitutional vision. But Ely was also an unsparing critic of many decisions. He certainly did not believe that the Supreme Court consistently conformed to his theory.

   In this Article, I want to suggest that the Supreme Court, in some of its most prominent decisions in recent decades, has engaged in an unobvious form of representation reinforcement. It is a kind of representation reinforcement that is adumbrated in Democracy and Distrust and is fully consistent with Ely's approach, although Ely did not specifically advocate it. This kind of representation reinforcement might be called "modernization."

   The idea is that the courts' task is to identify areas where the laws on the books no longer reflect popular opinion. That can happen for a number of reasons--because of the costliness, in legislative time and effort, of enacting new legislation; because a powerful interest group is able to block legislative reform that is favored by a majority; or because of jurisdictional boundaries that allow some parts of the country to continue enforcing a practice that a national majority considers unacceptable. In these situations, the courts might invalidate statutes in the expectation that they are in fact carrying out the will of the people. A corollary is that the courts should be prepared to retreat, if they find that they have misgauged popular sentiment--that is, if the political process reacts by reaffirming the law that has been invalidated. If judicial review were carried out in this way, it would bring the law more into keeping with popular sentiment.

   This kind of modernization has, I think, been central to the work of the Supreme Court in recent decades. It accounts for important constitutional principles that are otherwise hard to explain. It is a plausible and defensible role for the courts to play, or at least so I will argue. It does lead to results--such as the results reached in some of the Supreme Court's so-called substantive due process decisions--that Ely notably attacked. But I believe that the modernization approach leads to those results in ways that are fully consistent with Ely's premises. (2)

   Modernization is, of course, not the only thing that the Supreme Court does when it reviews the constitutionality of statutes. Nor is it, in my view at least, a fully adequate account of what the courts should do. But I believe it is not only a significant part of what the courts do but an approach to judicial review that is entirely consistent with the theory of Democracy and Distrust.

   In the first Part of this Article, I will discuss four important areas in which, I will argue, the Supreme Court's work can be understood as a form of representation-reinforcing modernization. In the second Part, I will try briefly to defend the modernization approach, both in general and as a faithful implementation of the vision of Democracy and Distrust.

1. MODERNIZATION: FOUR EXAMPLES

   1. Sex Discrimination

      Since the early 1970s, the Supreme Court has closely examined, and frequently struck down, statutes that classify on the basis of sex. (3) Ely generally approved of these decisions. He struggled to explain why they were consistent with his overall view, though, and in the end I believe he suggested a modernizing function for the courts, without calling it that.

      Ely's starting point for analyzing the constitutional principles forbidding discrimination was the Carolene Products footnote that famously envisioned a more aggressive judicial role in protecting "discrete and insular minorities." (4) But it was hard to see how the Carolene Products idea could justify the courts' invalidating laws that discriminated against women. Women are not, Ely said, an "insular" group--"[t]he degree of contact between men and women could hardly be greater." (5) And, he added, "[L]est you think I missed it, women have about half the votes, apparently more. As if it weren't enough that they're not discrete and insular, they're not even a minority!" (6)

      Ely nonetheless defended the principle that sex classifications are presumed to be unconstitutional. He began by noting that women were disenfranchised for much of our history. Statutes that discriminate against women and were enacted while women were disenfranchised "should be invalidated." (7) But many statutes that the Court invalidated were enacted after women could vote, notably as part of Social Security and other New Deal-era programs. (8)

      As to those statutes, Ely argued that even after women could vote, they may have internalized, as a psychological matter, the widespread stereotypes about men's and women's roles that underlay discriminatory legislation. (9) That psychological state would have prevented women from advancing their own interests as effectively as they should have. (10) Until that problem was overcome, there was still a basis, under Ely's representation-reinforcement view, for courts to invalidate laws that discriminated against women.

      Ely drew two related conclusions from this analysis. The first was that "the case of women seems one where the date of enactment should be important" because the date "seems unquestionably relevant to" the continued existence of these "official or unofficial" barriers to full participation in the political process, (11) Second, Ely suggested, the courts' approach to sex classifications should not be simply to invalidate them and require the legislature to use sex-neutral classifications. Rather, the courts should be prepared to uphold a sex classification if it was reenacted by a democratic process that was unencumbered by either formal or psychological barriers to full participation. "The fact that due process of lawmaking was denied in 1908"--when women did not have a constitutional right to vote--"or even in 1939"--when, as Ely suggested, there was widespread acceptance, even among women, of stereotyped sex roles--"needn't imply that it was in 1982 as well." (12)

      This is the germ of the modernization idea. Ely puts the point in terms of the erosion of psychological barriers to participation--of women coming to reject invalid stereotypes that they once accepted. But this is probably more specific than it needs to be. The general idea, which is surely plausible, is simply that attitudes toward sex roles have changed since, say, 1950. If they have, then laws based on the earlier attitudes may not reflect true popular sentiment. They may persist only because of some form of inertia. The courts would enhance, not thwart, democracy if they invalidated those laws, especially if--as Ely suggested--they left the door open for the laws to be upheld if they were reenacted.

      Of course, one crucial objection--which I will try to answer later--is that courts are not institutionally equipped to make that kind of judgment about changes in popular sentiment. A partial (and only partial) answer is that if the courts are prepared to uphold a reenacted version of the law, they hedge against the possibility that they have misjudged popular sentiment; if they got it wrong, the democratic process will correct them, and they will accept the correction. But in any event, if the objection about the courts' institutional capacity can be met, the case for a constitutional principle forbidding sex discrimination--on representation-reinforcing grounds--seems to follow. Laws enacted in the earlier era reflect a way of thinking that the popular sentiment would now reject; despite that, those laws have not yet been changed by the democratic processes, because of various inertial forces. The courts should, therefore, invalidate those laws--thereby furthering the operation of democracy--while being prepared to uphold the same laws should they be reenacted.

      This account of the constitutional law of sex discrimination helps explain both the rhetoric and the outcomes of the Supreme Court's decisions. When the Court has invalidated sex classifications, it has characterized them as resting on "archaic," "traditional," or "stereotyped" views about men's and women's roles, or as the result of "old notions" that are inconsistent with "contemporary reality." (13) These terms might suggest that the problem with these stereotypes and old notions is that they are inaccurate. (14) But many of the gender classifications invalidated by the Court rested on generalizations that were certainly accurate in a purely descriptive sense--such as the generalization that women are more likely to be interested in becoming nurses than men, (15) or that women are more likely than men to be economically dependent...