Democracy-Assisting Judicial Review and the Challenge of Partisan Polarization

Abstract

Democracy-assisting judicial review is a theme that has recently reemerged in normative constitutional scholarship. It asks the Supreme Court to use its power to vindicate the people’s views that have been stymied by a dysfunctional political process, a problem that has worsened in recent years. The main deficiency in this prescription is that it overstates the Court’s ability to compensate for problems like polarization and gridlock since it is a part of the interbranch strategies employed by partisan regimes. This was demonstrated in the area of reapportionment, typically seen as a classic example of democracy-assisting judicial review. It is also evident in recent Roberts Court decisions in the election-law field. This Article recommends abandoning the democracy-assisting idea and instead exploring ways to prevent the Court from being enlisted in extreme and unrepresentative causes. Reform ideas should focus on increasing and regularizing turnover on the Court and encouraging the selection of more representative Justices, an outcome made more likely by increasing the representativeness of the elected officials who choose the Justices. Absent a crisis, of course, it is highly unlikely that any such reforms will be adopted. Nonetheless, it is a worthwhile exercise to think about how to enhance representational and consensus-building processes in the presence of growing partisan polarization. And it is a more valuable exercise than simply imploring the Justices be less partisan or suggesting that they defer to today’s laws that represent such fragile legislative compromises. Institutions and processes, and the incentives they create, must be changed if behavior is to be changed. The best we can do for the Court and for American democracy in 2020 and beyond is to construct better electoral processes that produce more representative leaders who, in turn, select more representative Justices, which aids the quest for true constitutional consensus.