Pluralism and distrust: how courts can support democracy by lowering the stakes of politics.

• Author: Eskridge, Jr., William N.
• Position: On Democratic Ground: New Perspectives on John Hart Ely

CONTENTS INTRODUCTION I. SOCIAL MOVEMENTS AND REPRESENTATION REINFORCEMENT THEORY A. Women's Rights B. White People's Rights C. Gay Rights--and Beyond II. LOWERING THE STAKES OF POLITICS: A THEORY OF PLURALISM-FACILITATING JUDICIAL REVIEW A. Pluralist Democracy and Its Discontents 1. The Problem of Insider Lock-Ins and Outsider Suppression 2. The Problem of Culture Wars 3. The Transition Problem: Obsolescent Legal Rules After a Normative Regime Shift B. How Judicial Review Can Strengthen Pluralist Democracy by Lowering Its Stakes 1. Enforcing Neutral Rules of Political Engagement 2. Ameliorating Culture Wars a. No Forced Assimilation: The State Cannot Impose Identity-Based Conformity upon Minorities (Speech Clause) b. No Demonization: Channeling Political Discourse away from Prejudice and Stereotypes (Equal Protection Clause) c. No Permanent Losers: Neutrality (Equal Protection and Due Process Clauses) 3. Reversing the Burden of Inertia for Obsolete Statutory Policies (Due Process Clause) C. What Judicial Review Should Presumptively Avoid: Do Not Drastically Raise the Stakes of Politics 1. Scylla: Roe v. Wade 2. Charybdis: Bowers v. Hardwick 3. Between Scylla and Charybdis: Casey and Lawrence III. APPLYING A PLURALISM-FACILITATING MODEL TO TODAY'S (AND TOMORROW'S) CONTROVERSIES A. Monitoring the Presidential War on Terror B. Language Minorities and the Constitution C. Same-Sex Marriage CONCLUSION INTRODUCTION

Democracies can function without judicial review. Deliberation by elected legislators is more reliable and more legitimate in solving problems and accommodating groups than deliberation by unelected judges. (1) Under what circumstances, if any, can aggressive judicial review be defended? The traditional answer has been that judges enforcing our popularly ratified social contract (the Constitution) are not acting undemocratically. (2) But key constitutional provisions are open textured. Due process of law, equal protection, and freedom of speech are not determinate commands; their breadth and ambiguity assure judicial discretion.

The activism of the Warren Court (1953-1969) rendered this theoretical quandary politically urgent. If the Justices were simply imposing their own liberal values onto these open-textured clauses, why should Southern states, police departments, and state legislatures respect Warren Court decrees that invalidated settled practices and local customs? Academics searched for a theory that would resolve the tension between activist review and democracy. The most successful was the representation reinforcement theory developed by John Hart Ely in Democracy and Distrust. (3)

Ely's project was an elaboration and defense of footnote four of United States v. Carolene Products Co. (4) Upholding an economic regulation, Carolene Products described circumstances where the strong "presumption of constitutionality" may not hold: (1) laws violating the clear commands of a "specific prohibition" in the Constitution, such as the Bill of Rights; (2) laws restricting "those political processes which can ordinarily be expected to bring about repeal of undesirable legislation"; and (3) laws "directed at particular religious or national or racial minorities" or reflecting "prejudice against discrete and insular minorities." (5) Judges should aggressively review such laws, Ely maintained, to ensure that the preconditions for the proper operation of democracy are in place: (1) the rule of law, (2) formal access to democratic processes, and (3) adequate representation. (6)

The representation reinforcement formula explained the Warren Court's jurisprudence as an effort to correct entrenched race-based democracy deficits. Under Ely's interpretation, that Court was not a bunch of result-oriented liberals; it was a serious group of jurists dedicated to assuring neutral rules for the operation of America's democracy. The Court was a process-enforcing referee, not a super legislature. (7) And this is the role suggested by the structure of the Constitution itself. The Constitution's premise is democracy: All adults must have the right to vote and to engage in expressive activities; freely elected legislators are accountable to We the People and open to criticism; and legislatures cannot indulge in class legislation, censorship, an established church, or other activities that undermine the conditions for robust democracy. (8) After reading the book, you want to believe that the theory was inherent in the Constitution. The social contract's rule of law coincides with justice and the civil rights revolution of the twentieth century. This is compelling stuff.

But Ely's theory provided a much better defense of judicial activism in the Warren Court's race cases than in the post-1969 sex, sexual orientation, and race cases. The newer cases expose the representation reinforcement model to charges that it understates the substantive commitments of the Constitution and lacks a political theory of democracy that courts ought to be "perfecting." These problems suggest that the theory is indeterminate, thereby deepening rather than solving the problem of unguided judicial activism. (9) Part I of this article explores these criticisms in the context of the post-1969 cases.

The post-1969 cases not only reveal that Ely's theory does not work as a descriptive matter but also suggest that it is incomplete as a prescriptive matter. Part II outlines an understanding of the multicultural-pluralist democracy suggested by our experience with social movements such as the civil rights, women's rights, gay rights, and traditional family values movements. Under this conception of our democracy as multicultural and pluralist, Ely was right to criticize judicial review that hardwires a woman's near-absolute right to choose abortion into the Constitution. Contrary to Ely, lenient judicial review of sodomy laws illustrates equally misguided judicial passivity. What makes both lines of cases problematic is that the Supreme Court burdened American democracy by raising the stakes of politics. In its early abortion cases, the Court raised the political stakes by prematurely removing a fundamental and hard-to-resolve issue from ordinary politics. Suggesting that homosexuality might be a demonized status because of its tie to illegal conduct, the Court's sodomy jurisprudence raised the stakes by denying a group of citizens the protection of a neutral rule of law. Both lines of cases yielded immediate and longstanding political turmoil, and the Court has backed away from both.

Conversely, as Ely argued, a cautious judicial review can contribute positively to the democracy project. Part II suggests conditions under which judicial review can facilitate the operation of our pluralist democracy by lowering the stakes of politics. First, judges can encourage all groups to participate by assuring that neutral rules of an open political system are vigorously enforced. (This is a pluralism-facilitating justification for the first Carolene Products prong.) Second, judges can ameliorate politically destructive culture wars by denying groups state assistance in their efforts to exclude, demonize, or harm groups they dislike and by channeling intergroup politics away from appeals to prejudice and stereotypes. (This is a pluralism-facilitating extension of the second and third Carolene Products prongs.) Third, judges can help integrate successful new identity groups into the political process by clearing away obsolete laws that discriminate against these new partners assimilated into our multicultural pluralism. (This goes beyond the Carolene Products framework.)

Part III applies the foregoing model of pluralism-facilitating judicial review to several topics of current and future constitutional interest: the role of courts in monitoring the war on terror, state discriminations against language minorities, and state and federal bars to same-sex marriage. The pluralism-facilitating model addresses the concerns of women, pro-life persons, language minorities, and lesbians and gay men, but with procedural twists to avoid judicial stakes raising. For contentious issues that roil the nation, the Supreme Court should not impose national resolutions and should instead rely on dialogic techniques that essentially remand to the democratic process and leave it room to elaborate or respond. Introduced in Section II.C and applied in Part III, these techniques include avoidance of tough constitutional issues through procedural dodges (the passive virtues) or narrow statutory interpretations; incremental, case-by-case development of new constitutional principles; and use of constitutional doctrines such as void-for-vagueness and as-applied challenges, which allow the political process to respond.

1. SOCIAL MOVEMENTS AND REPRESENTATION REINFORCEMENT THEORY

   During the 1964 Term, John Hart Ely clerked for Chief Justice Warren, whom he idolized. (10) Ely recognized that the Warren Court was activist, but in the service of process and not values. (11) Defending such a process-serving activism, Democracy and Distrust laid out a constitutionally justified recipe for filling in the "open texture" of the Free Speech, Due Process, and Equal Protection Clauses. These provisions should be read most aggressively when legislative majorities lock out minorities from political power or adopt policies reflecting social prejudice. Thus, the Warren Court was legally (not just morally) fight to protect religious minorities against compelled school prayers, (12) to require reapportionment and opening up of the franchise, (13) to protect minority and political associations and public expression from censorship, (14) and to insist on procedural protections for Latino and African-American defendants frequently railroaded through a white-dominated criminal justice system. (15)

   What originally struck law professors as the Court's most virtuous but least lawful decision, Brown v. Board of...