Equitable Sharing and the Supreme Court

Abstract

This article proposes a framework for judicial review based on a principle of equitable sharing that requires that the benefits and detriments of social life be equitably shared among all of society’s members. Related articles argue that a truly democratic society must adhere to a principle of equitable sharing, and that plausible readings of the Declaration of Independence and the Constitution support a requirement of equitable sharing as integral to the American social ideal. This article argues that the Supreme Court’s relative autonomy from the political process enables it to contribute positively to the societal debate over the rights that flow from equitable sharing, and that the Court’s ties to the political process enable it to do so in a way that is consistent with democratic principles. The article then applies equitable sharing to several current controversies: the same sex marriage issue likely to come before the Supreme Court in the near future; the race conscious student assignment plans struck down in Parents Involved in Community Schools v. Seattle School District No.1; and the ban on corporate expenditures in elections and the matching fund plan in publicly funded elections overthrown, respectively, in Citizens United v. Federal Election Commission and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett.