By Girardeau A. Spann. New York: New York University Press. 1993. Pp. vii, 266. $40.
To engage in a serious discussion of race in America, we must begin
not with the problems of black people but with the flaws of American
society -- flaws rooted in historic inequalities and longstanding cultural
Professor Girardeau Spann of the Georgetown University Law Center would probably characterize the Supreme Court's perpetual subordination of minority interests as one of American society's key "flaws." Spann raises serious and thoughtful questions about the present legal system's ability to achieve racial equality in the United States, tracing the current lack of racial equality to the inherently majoritarian Supreme Court.
Part One, entitled "Veiled Majoritarianism," describes the Supreme Court's counterminoritarian propensity. In Chapters One and Two, Spann debunks the Supreme Court's ability to behave according to the traditional model of judicial review, which postulates that the Court can perform in a countermajoritarian manner (pp. 9-26). Here, Spann lays the historical framework for the notion of a countermajoritarian Court. He concludes that the Court is in fact counterminoritarian despite the traditional model and the safeguards designed to check majoritarian tendencies (pp. 19-26). He reasons, first, that the formal safeguards the Constitution articulates are ineffective. For example, Supreme Court Justices' life tenure and salary protection, designed to isolate the Court from political pressure, are inadequate for the task. Spann resolves that these formal safeguards have only symbolic value because they have failed to shield the Court from political pressure in the past and continue to perpetuate the judiciary's majoritarian disposition (pp. 23-25). Second, Spann challenges the legal system's operational safeguards, including its dependence on principled adjudication. This dependence fails to arrest the Court's counterminoritarian tendencies because the judicial discretion inherent in the process of principled adjudication does not prevent the permeation of majoritarian values (p. 26).
Furthermore, Spann contends that Supreme Court Justices cannot protect minority interests because they are indoctrinated with majoritarian ideologies throughout the confirmation process. He argues that this indoctrination penetrates the Justices' ideologies in such a way and to such an extent that they are unable to avoid complete conversion to a majoritarian mentality (pp. 20-23). Moreover, these Justices invoke majoritarian ideologies both consciously and unconsciously. Neither the formal nor the operational safeguards can counteract the infiltration of internalized majoritarian values. First, the formal safeguards cannot subvert the unconscious reliance upon majoritarian ideologies (p. 25). Second, the procedural safeguards necessarily involve a certain degree of judicial discretion; the Justices' majoritarian inclinations affect their use of this discretion (P. 26). Justices use their discretion to derive legal principles, to decide which legal principles to use, and to select among the outcomes various legal principles will produce (p. 27). This discretion results in the influx of majoritarian preferences.
Chapters Three, Four, and Five explore how judicial discretion enables the infiltration of majoritarian values into legal principles and how this discretion continues to manifest those values through the selection and application of legal principles (pp. 27-82). Spann claims that this discretion permits Justices to invoke majoritarian preferences. Chapter Three argues that the Supreme Court both expressly and implicitly relies upon majoritarian preferences in applying its legal principles (p. 27). Expressly, the Court interprets legal principles to comport with prevailing majoritarian philosophy (p. 27). When courts interpret legal principles in a majoritarian manner, they cannot preserve minority considerations in judicial decisionmaking (p. 31). Implicitly, the Court gives effect to majoritarian preferences through deferential standards of review (p. 31). To support his claim, Spann discusses three methods the Court may employ to defer to majoritarian values and cites several examples of the Court's approach under each method. First, the Court may decline to apply heightened scrutiny to specific cases even though they appear to be race cases (p. 32). Second, the Court may determine that challenged government entities have in fact made the difficult showing that a heightened standard of...