Democracy and Distrust

"Of the immense legal literature on US democracy and the role of the American Supreme Court, this is the one book that has most profoundly affected my understanding of the rule of law, and of the role of the judges in compensating for the failures of democracy. Since reading this I have remained under the spell of the unique quality of constitutional writing in America, especially by my colleagues at Yale like Owen Fiss, Paul Kahn, Jed Rubenfeld, and Bruce Ackerman. I put them in the ‘maverick’ category because they cast a unique light on an otherwise opaque system of government in the US. The system holds up less because of elections and political parties than thanks to the discourse in and around the US Supreme Court. Democracy is defined by majoritarianism – you win the majority of the vote and you rule. But there are minorities who don’t have the means to counter the rule of the majority by definition, because they are a minority and don’t have enough votes. This judicial counter-majoritarianism started under Chief Justice Earl Warren, for whom Ely clerked, when the Supreme Court ruled to end bus and school segregation in 1954, sparking the Civil Rights movement which eventually led to Barack Obama becoming president. And the Supreme Court is important in cleaning the channels of the political process. There is a natural and intrinsic drive towards corruption – if someone is in power they want to remain in power and so they block the normal processes of democracy by gerrymandering, by enhanced access to the media, by clogging the channels of change, by abusing money and power now available to them. The Supreme Court, Ely showed, must prevent this clogging of the political process by the people who, by definition, seek to stay in power. Well, it does do it, but not sufficiently. The mistake in Bush v Gore, for example, was that the Supreme Court intervened when it should not have done, while it has generally abdicated its role in preventing money from dominating the political process. It has done better in securing gender equality and, to some extent, minorities, but even then there is much left to do. My colleague at Harvard Law School, Laurence Tribe, summed it up best: the Court has forced ‘the one person one vote’ agenda; we have yet to get to the principle of ‘one person one voice’."