Felix Frankfurter’s Revenge: An Accidental Democracy Built by Judges

Felix Frankfurter’s Revenge: An Accidental Democracy Built by Judges

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The first decade of the twenty-first century opened and closed with two bitterly contested U.S. Supreme Court decisions impacting American democracy. In Bush v. Gore, five members of the Court prevented Florida from completing a recount of the potentially deciding votes in the 2000 presidential election, judicially awarding the election to George Bush. In Citizens United v. Federal Election Commission, a five-vote majority overturned two recent precedents and a century of practice in ruling that for-profit business corporations enjoy a First Amendment right to spend unlimited sums to influence elections. Many have noted the artificially rigid nature of the electoral equality analysis in the Bush v. Gore majority opinion, and the majority's departure from federalism principles in depriving Florida of the final decision about whether to continue the recount. Citizens United is also vulnerable to doctrinal critique. Crucially, Justice Anthony Kennedy's majority opinion never persuasively confronts the threshold issue of whether for-profit business corporations are comparable to individuals for the purposes of First Amendment analysis. While it is tempting to continue to pound on the two cases' doctrinal shortcomings (I will do more pounding on Citizens United, infra), doctrinal criticism, while important, almost never demonstrates definitively that a hard democracy case was wrongly decided. In both Bush v. Gore and Citizens United, plausible readings of constitutional doctrine point in two directions. In Bush v. Gore, seven justices, including Justices David Souter and Stephen Breyer, were persuaded that unconstitutionally unequal criteria were being applied in different Florida counties to measure the validity of contested presidential ballots. Justices Souter and Breyer disagreed only with the five-justice majority's decision to prevent Florida from seeking to correct the equality violation. Even the five-justice decision to end the Florida recount, while deeply problematic as a matter of federalism, was based on a fear that unless the Court acted immediately, expiration of the congressional safe-harbor period designed to insulate state presidential electoral results from congressional challenge might result in disenfranchising the entire state, or worse. While I believe that Florida should have had the final say on whether to take such a risk, and while the Court's refusal to trust Congress to act responsibly in dealing with a contested Electoral College issue bordered on contempt for the democratic process, I concede that treating the issue as one for Supreme Court resolution was defensible in the special context of a presidential election with immense national and international repercussions. Similarly, in Citizens United, First Amendment stalwarts like Floyd Abrams and the American Civil Liberties Union have applauded Justice Kennedy's opinion as a great victory for free speech. Viewed solely from a doctrinal perspective, therefore, while I believe that both cases got the law wrong, I cannot deny that reasonable people might differ as a matter of pure doctrine. There is, however, a second level of critique potentially applicable, not only to both Bush v. Gore and Citizens United, but to the full range of judicial decisions that have shaped the contours of American democracy for the past half-century-the critique of democracy. Under existing constitutional ground rules, American judges, confronted by a hard constitutional case with implications for democracy, are not required—indeed, they may not even be permitted—to ask whether the outcome is good or bad for democracy. Rather, at least since Baker v. Carr—1962 decision holding that federal courts could rule on voting district reapportionment issues they are expected to resolve the case by shoehorning it into one or another doctrinal category, such as equal protection, freedom of association, or free speech, without ever asking what kind of democracy they are building. The result has been the emergence of a dysfunctional, accidental democracy built by judges operating with doctrinal tunnel vision. It is long past time to bring concern over the quality of American democracy back into the judicial equation. The Constitution rests on three non-textual structural ideas—democracy, separation of powers, and federalism. Despite the absence of explicit textual guidance, the Supreme Court has forged effective constitutional doctrine protecting both federalism and the separation of powers. There is no reason why a body of substantive doctrine could not be forged, as well, protecting democracy. I recognize, of course, that “democracy,” like “the freedom of speech,” or “Our Federalism,” or “the separation of powers” is not a self-defining idea. But, like most of the luminous but abstract ideas in the Constitution, American democracy has an understandable core—robust self-government by citizens exercising equal political power—that can guide judges in deciding hard constitutional cases with implications for the working of the democratic process. At a minimum, when constitutional doctrine is narrowly balanced and one outcome clearly impedes robust egalitarian self-government, while the other enhances it, preserving robust democracy should be an important factor in judicial decision-making. When Bush v. Gore and Citizens United are viewed through a democracy-sensitive lens, they emerge as judicially imposed democratic disasters. Cutting off the Florida recount prevented the democratic resolution of a presidential election, resulting in a judicially imposed president. From a democracy standpoint, it does not get any worse. Similarly, unleashing unlimited partisan spending by for-profit corporations on the eve of an election may be good for corporations, but it threatens to increase exponentially the already excessive role played by money in our political process. I do not believe for a minute that a rational Founder would have knowingly designed a democracy where judges pick the president and for-profit corporations dominate political discourse. I hope to explain how we got to a place where judges ignore the quality of the democracy they are building, and to demonstrate that judges, operating solely at the level of doctrine, have accidently developed a profoundly dysfunctional law of democracy. I will argue that it is not too late to undo the damage. We can and should recognize that the judicially enunciated constitutional law of democracy is more than the interplay of unrelated formal constitutional doctrines, however correct the doctrinal analyses may be on their own terms. Rather, deciding democracy cases should be viewed as a free-standing process designed to advance, enhance, and protect the ability of “We the People” to govern ourselves as equal and effective participants in the democratic process.

Source Publication

Money, Politics, and the Constitution: Beyond Citizens United

Source Editors/Authors

Monica Youn

Publication Date

2011

Felix Frankfurter’s Revenge: An Accidental Democracy Built by Judges

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