Vol. 29 No. 5 (May 2019) pp. 53-56JUDICIAL REVIEW AND CONTEMPORARY DEMOCRATIC THEORY: POWER, DOMINATION, AND THE COURTS, by Scott E. Lemieux and David J. Watkins. New York: Routledge, 2017. 183 pp. Cloth $24.95. ISBN 978-1-138-09521-2.
Reviewed by Jesse Merriam, Department of Political Science, Loyola University Maryland. Email: jrmerriam@loyola.edu.
With JUDICIAL REVIEW AND CONTEMPORARY DEMOCRATIC THEORY: POWER, DOMINATION AND THE COURTS, Scott Lemieux and David Watkins have written a thoughtful and engaging book that is ultimately disappointing in failing to engage the political realities of 21st century America. Before explaining what is valuable about the book, and why it is nonetheless disappointing, I will contextualize the shifting debate over judicial review and where it is currently situated in the world of judicial politics, as this background is critical to the book’s place in legal discourse.
In the first half of the 20th century, progressives criticized robust judicial review as a threat to democratic governance, whereas conservatives defended judicial intervention as a constitutionally proper means of modulating popular impulses. During this period, the American Left-Right division, particularly as applied to judicial politics and constitutional law, was defined largely according to economic issues. Thus, cases involving contractual liberties, such as LOCHNER V. NEW YORK, were important in framing how conservatives and progressives thought about judicial review.
In the second half of the 20th century, however, there was a sharp transition in the relationship between judicial review and political ideology as America’s political divisions became more focused on social, cultural, and ethnic matters. Whereas the Old Left rejected robust judicial review (because the Old Left sought to protect large segments of the population from economic exploitation at the hands of the elite few), the New Left embraced judicial review in seeking to protect various minority groups from majority oppression. As the Warren Court advanced the New Left’s agenda on issues such as desegregation, school prayer, and criminal justice, conservatives began condemning the Supreme Court’s use of judicial power as “judicial activism” and a threat to majoritarian rule.
Over the last 75 years, left-leaning scholars, politicians, and judges have generally maintained this favorable position toward judicial review, but the American Right has transitioned on this issue, as many right-leaning legal scholars have recently embraced what they call “judicial engagement” – i.e., an aggressive use of judicial review in effectuating the Constitution’s original public meaning. Just as the American Left came to embrace judicial review for political purposes, the American Right’s renewed commitment to judicial review has coincided with the Republican Party’s control of the Supreme Court and the rise of the Federalist Society.
We see this ideological convergence with regard to judicial power not only in the academy but in judicial and party politics as well. For example, some of the most controversial conservative victories over the last decade, such as DISTRICT OF COLUMBIA V. HELLER, CITIZENS UNITED V. FEDERAL ELECTION COMMISSION, and MCDONALD V. CHICAGO, involved an active use of judicial power in conflict with established precedent and democratically enacted legislation. Likewise, the Republican Party has made President Trump’s judicial nominations a central feature of the Senate’s agenda, even while resisting the cardinal features of his campaign – namely, trade protectionism and border enforcement. Similarly, conservative elites who vociferously opposed Trump in the presidential primaries now favor his presidency for the judicial power, giving rise to the “But Gorsuch!” rallying cry. [*54]
Meanwhile, one might expect the ascendance of judicial activism among conservatives to lead to a correlative loss of faith in the courts among liberals. This has not yet been the case, as Democrats continue to favor a robust judicial power; in fact, many Democrats and liberal scholars are now calling for a new court-packing plan.
In short, judicial review is where the action lies these days, on both sides of the political divide. And this book by Lemieux and Watkins steps right into the action, seeking to defend judicial review as consistent with, and perhaps necessary to, democratic governance.
In many ways, the book is an updated version of John Hart Ely’s DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980). Recall that the debate during Ely’s years centered around how to reconcile the Warren Court’s use of judicial power with Alexander Bickel’s concerns about judicial review expressed in his THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (1962). Ely’s response to Bickel’s “countermajoritarian difficulty” was that judicial review serves as a democratic mechanism when it is used to reinforce the representation functions of democratic institutions. For example, when minority groups are systematically excluded from democratic participation, judicial review becomes necessary, in Ely’s view, for democracy to operate.
In understanding Lemieux and Watkins’ book, it is important to note the relevant political landscape. Whereas Bickel and Ely wrote about judicial review at a time when the conservative side favored judicial restraint in opposing the Warren Court, and when the liberal side favored judicial activism in defending it, Lemieux and Watkins are writing about judicial review at a time when both sides embrace a robust form of the doctrine. Moreover, Lemieux and Watkins are writing about judicial review in a significantly more divided America, one in which a polarized Congress has effectively delegated all controversial decision-making on social and cultural issues to the federal judiciary.
Lemieux and Watkins’ writing reflects this new paradigm. Unlike Ely, they are not simply defending the Warren Court; rather, Lemieux and Watkins seek a theory that justifies an even more aggressive use of judicial power than exercised by the Warren Court.
This is apparent in their analysis of Ely’s theory of democracy reinforcement, which Lemieux and Watkins find lacking due to its focus on the mere procedures of institutional representation as opposed to the substance of inter-personal relations. For Lemieux and Watkins, democracy is not simply about participation in governmental decision-making. Drawing from work in political theory conceiving of democracy as a bulwark against hierarchy and domination, Lemieux and Watkins argue instead that democracy requires not merely political participation but veto points – i.e., procedures and institutions designed to prevent the political process from facilitating domination through excessive state authority and abusive private power relations. Thus, according to Lemieux and Watkins, judicial review is democratically defensible not only when it reinforces representation but also when it serves as a veto point to prevent governmental and inter-personal domination.
After establishing their theory of democracy, Lemieux and Watkins develop a careful and narrow defense of judicial review. They acknowledge that judicial review can at times promote domination, such as when the Supreme Court upheld Jim Crow practices throughout the late 19th and early 20th centuries. Nevertheless, while they do not provide a categorical defense for judicial review, Lemieux and Watkins do argue that judicial review generally provides a better guarantee against domination than other veto points.
Their comparison of judicial review and federalism as veto points is worth some consideration. Lemieux and Watkins concede that decentralization could potentially provide a safeguard against governmental domination, but [*55] they ultimately find decentralization to be an inadequate veto point because it does not provide sufficient protection against private inter-personal domination. Their example of such domination is, of course, the Jim Crow South, where protection from domination was achieved only through federal legislation and Supreme Court intervention.
There are three important ways, however, in which their analysis of federalism does not resonate with 21st century realities. First, the costs of decentralization are much less significant now as compared to just 50 years ago. Due to changes in transportation technology and infrastructure, Americans of various backgrounds cross state lines and often times entire regions of the nation throughout their lifetimes. Second, not only are the costs of decentralization much less significant in 21st century America, but the costs of centralization are much more significant. In fact, in a nation increasingly divided by region and political identity, decentralization may be essential to making democracy work. Indeed, it is at least arguable that the bitter and vituperative discourse that has become so common in our national elections would not be as pervasive if the national government did not have as much power as it now exercises. Third, in such a divided and diverse nation, domination threats now exist on many sides, not just against historically disempowered minority groups.
Consider, for example, the question of domination in MASTERPIECE CAKESHOP V. COLORADO CIVIL RIGHTS COMMISSION. Who was more dominated – the gay couple, who could not get the wedding cake of their choice at a particular bakery, or Jack Phillips, the sole proprietor of the bakery whom Colorado penalized for refusing to bake a cake for the gay couple’s wedding? As the Supreme Court decision highlighted, people interpreted this dispute through the prism of their ideological commitments, with liberals seeing domination in the exclusion of the couple from the bakery’s publicly available services, and conservatives seeing domination in the state’s penalizing Phillips in a way that undermined his control of his business in accord with his religious beliefs.
The Supreme Court’s exercise of judicial review in MASTERPIECE CAKESHOP meant that Colorado was disabled in how it could protect its gay citizens from discrimination. It seems that a better veto point, in this case at least, would have been decentralization, which would have allowed Colorado to maintain its anti-discrimination policy, while also allowing Phillips to move his bakery to a more hospitable location, such as one of the many nearby Red states. With the power of judicial review, this question comes down to the votes of five elite lawyers, but with federalism, the difficult question of how to arbitrate conflicts between gay rights and religious liberty could come down to 50 state legislatures, or even hundreds of local governments.
This points at two major shortcomings in the Lemieux and Watkins book. First, in defending judicial review based on a theory of democracy as a bulwark against domination, they do not seem concerned with how this theory fits within the Constitution’s design, which clearly distinguishes between state and private action. Their theory of judicial review would therefore require a vastly different constitutional order, one that empowers the government, and in particular the judiciary, to oversee a broad range of inter-personal affairs. Second, and even more problematic, even if we accept that domination is the critical element of democratic governance, their view of what constitutes domination often seems politically tendentious. While the authors analyze prominent liberal causes (such as abortion, sexual identity, and racial inequality) as prime candidates for judicial protection, they completely ignore the fact that conservative positions (on such diverse issues as religious liberty, big tech censorship, and affirmative action) involve domination as well, often times at the hands of powerful organizations operating in tandem with governmental authority.
The book would have been much more interesting if it considered how domination is likely to operate in concert with changing power structures, particularly as the Democratic Party becomes increasingly associated with powerful urban elites and big business, and the [*56] Republican Party with disempowered rural areas and working-class interests. By ignoring these features of the changing American political landscape, and how the notions of who is in the dominant group and what constitutes domination are quickly changing, the work often reads as a highly sophisticated and theoretical defense of what boils down to the following simple proposition: judicial review is good when it’s liberal and bad when it’s conservative. It follows, then, that judicial review, at least in our polity where the Supreme Court has tended to be more liberal than the general public on social and cultural issues, is more defensible than other veto points.
This book might make for a satisfying read for like-minded scholars, but it is unlikely to persuade those who hold a different understanding of democracy and domination. If anything, this book should make us more wary of judicial review, as it is yet another reminder that arbitrating social controversies in such a large and diverse nation will always be an exercise of political power, whether or not the power is disguised as law or democracy.
CASES:
CITIZENS UNITED V. FEDERAL ELECTION COMMISSION, 558 U.S. 310 (2010).
DISTRICT OF COLUMBIA V. HELLER, 554 U.S. 570 (2008).
LOCHNER V. NEW YORK, 198 U.S. 45 (1905).
MASTERPIECE CAKESHOP V. COLORADO CIVIL RIGHTS COMMISSION, 584 U.S. ___ (2018).
MCDONALD V. CHICAGO, 561 U.S. 742 (2010).
REFERENCES:
Bickel, Alexander. 1962. THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS. Indianapolis, Indiana: Bobbs-Merril Company, Inc.
Ely, John Hart. 1980. DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW. Cambridge, Massachusetts: Harvard University Press.
© Copyright 2019 by author, Jesse Merriam
