POLITICAL TRUST, SOCIAL TRUST, AND JUDICIAL REVIEW.

AuthorMazzone, Jason

INTRODUCTION

The fortieth anniversary of John Hart Ely's influential book, Democracy and Distrust: A Theory of Judicial Review, is a good occasion to focus less on democracy and more on distrust. Ely famously sets forth a process-based approach to judicial review, one he describes as "participation-oriented, representation-reinforcing." (2) Under Ely's approach, majorities are generally entitled to rule and so judges should generally defer to the outcomes of majoritarian decision-making processes. Closer judicial scrutiny is warranted in two general circumstances, in order to correct process failures--failures that mean the process cannot be trusted and its outcomes become problematic. As Ely explains:

In a representative democracy value determinations are to be made by our elected representatives, and if in fact most of us disapprove we can vote them out of office. Malfunction [justifying judicial intervention] occurs when the process is undeserving of trust, when (1) the ins are choking off the channels of political change to ensure that they will stay in and the outs will stay out, or (2) though no one is actually denied a voice or a vote, representatives beholden to an effective majority are systematically disadvantaging some minority out of simple hostility or a prejudiced refusal to recognize commonalities of interest, and thereby denying that minority the protection afforded other groups by a representative system. (3) On this account, rather than seek to vindicate substantive constitutional values, the appropriate role of the Supreme Court (Ely's singular focus) is referee, (4) intervening to keep clear the channels of political change and to ensure adequate protections for the interests of minorities. Ely dedicates his book to Earl Warren (5)--and for good reason. In his view, the Warren Court's jurisprudence, including in its apportionment cases and its robust invocation of equal protection, reflected an appropriate, process-oriented role of judges--a role "foreshadowed" (6) in footnote four of Carotene Products (7)--in enhancing political participation and correcting against an untrustworthy process that results in disadvantages for racial and other minorities.

My focus in this short Essay is on a key element of Ely's motivating claim: that judicial review is warranted when governmental process is undeserving of trust. Although Ely takes the view that we can trust government (and trust each other) most of the time--with judicial review the remedy for untrustworthy processes (8)--he actually says very little about trust specifically. The word, "trust," itself appears just four times in the text. (9) The word "distrust" appears only in the book's title. Strikingly, while Ely invokes trust, he does not draw at all upon the vast scholarly literature, in political science and allied fields, on conceptions and measurements of trust and its significance to democratic processes. In this Essay I suggest some ways in which that literature might helpfully enhance Ely's own account of judicial review. Of particular relevance to revisiting Ely's work on its fortieth anniversary is what social scientists report about changes in levels of trust that have that occurred over time. Ely's position that most of the time government can be trusted (and so courts should generally stay their hands) had an important public analog. The Warren Court era (1953-1969) corresponded to a period in which Americans themselves placed very high levels of trust in government--as well as in their fellow citizens. Since the time of the Warren Court, however, trust in government--and in particular in the federal government--has plummeted, as has the propensity of Americans to trust each other. These changes invite questions about Ely's thesis as Democracy and Distrust enters its fifth decade. How should we think about judicial review if, in fact, most of the time we don't trust government--or trust some governmental institutions far less than others--and we don't trust each other? What role, under those circumstances, should the courts play?

Part I provides an overview of conceptions and measurements of trust and of changing levels of trust over time. Part II suggests how changes in political trust might inform the role of courts. Part III explores the same issue with respect to social trust. A brief conclusion follows.

  1. TRUST: AN OVERVIEW

    There is a vast and growing social science literature on trust. This Part highlights the key aspects of that literature that can inform Ely's own account of judicial review and lay also the groundwork for reconsidering the role of courts today. My discussion is divided into two main sections, corresponding to two different kinds of trust: political trust and social trust. In a nutshell, political trust refers to trust individuals place in their government. Social trust, on the other hand, refers to trust that individuals place in their fellow citizens. The bulk of the discussion in this Part concerns political trust because it is especially relevant to Ely's project, but social trust is relevant, too, and therefore warrants at least brief attention.

    1. POLITICAL TRUST

      Political trust is a measure of the public's confidence in the institutions of government and in those who exercise political power. Social scientists report several key determinants of political trust, including procedural fairness (political trust is higher when individuals are involved (or believe they have been involved) in the mechanisms of government decision-making (and when people believe the government acts impartially and predictably)); perceptions of the overall quality of government (e.g., in its delivery of public services, checks on self-dealing and other forms of corruption, and adherence to protections for individual rights); and personal economic performance (the better we are doing financially the more likely we are to trust the government). (10) Importantly, political trust is not monolithic: citizens might well trust some political institutions and actors more than they trust others. (11)

      In drawing upon the social science literature on political trust to consider the role of courts and to assess Ely's own approach to judicial review, the most relevant findings can be summarized as several key points. While there are effects of political cycles, it is clear that political trust has declined since the period of the Warren Court. (12) Importantly, though, despite regular reports that Americans have come to distrust "government," distrust today is directed only at certain governmental entities. Specifically, trust in Congress and the federal executive has sharply dropped since the Warren Court era. Trust in the federal judiciary, however, has held strong. In addition, and most importantly, trust in state and local government has remained high over time even as Americans have come to distrust the elected branches of the federal government. (13) These developments, summarized in this section, should prompt a rethinking of applications of the Elyan approach to judicial review, the topic explored in Part II.

      i. Declining Trust in the Federal Government

      Serious efforts to measure levels of political trust began in 1958, five years into the Warren Court era. In 1958, the first year the National Election Study asked Americans about their trust in government, 73% of respondents said they trusted the federal government "always" or "most of the time." (14) By the end of the Warren Court period, that figure had dropped: to 62% in 1968 and to 54% in 1970. (15) In March of 1980, the year Ely published Democracy and Distrust, just 27% of Americans reported trust in the national government. (16) These declines were no secret: commentators were widely remarking on, and seeking to explain, the sharp drops in political trust. (17)

      More recently, public trust in the federal government has declined even further. Surveys show that the overall level of trust in the federal government is now at "near-record lows;" (18) that a majority of Americans are dissatisfied with the direction the country is taking; (19) and that only a minority is satisfied with the way the nation is governed. (20) "Dissatisfaction with government" tops the list of national problems survey respondents identify. (21)

      Since the onset of the Great Recession in 2007, the share of Americans who say they trust the federal government to do what is right either just about always or most of the time has hovered near 20%. This remains true today, with 2% [in 2020] saying they trust the government just about always and 18% saying they trust the government most of the time. Nearly eight-in-ten (79%) say they trust the federal government to do what is right either some of the time (65%) or never (14%). (22) Half of Americans even believe "the federal government poses 'an immediate threat to the rights and freedoms of ordinary citizens.'" (23)

      Of course, the federal government is not a single entity. Other evidence sheds relevant light on Americans' views towards different federal governmental institutions. Since 1972, Gallup has polled Americans on their trust in the three federal branches. That evidence shows that levels of trust in Congress and the executive branch have both declined, while trust in the judiciary has remained high over time. In 1972, 71% of respondents expressed "a great deal" or a "fair amount" of "trust and confidence" in Congress. (24) In 2020, that figure was 33%. (25) As to the executive branch, 73% of respondents in 1972 expressed "a great deal" or "fair amount" of trust; in 2020, the figure was 43%. (2A) For the federal judicial branch, however, there has been virtually no change: in 2020, 67% of respondents expressed "a great deal" or "fair amount" of trust and confidence in the judiciary, compared to 67% in 1972. (27) Distrust of the federal legislature is reflected in other findings: incredibly, "Congress engenders the lowest confidence of...

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