Democracy and Disorder
Files
Description
Some initial questions on constitutional cases involving democratic politics before the deluge of Bush v Gore: When judges see a “blanket” political primary, in which voters can pick and choose, office by office, which party’s primary they want to vote in—the Republican primary for governor, the Democratic primary for Secretary of State, the Libertarian primary for treasurer—do judges see a crazyquilt process that threatens to undermine the integrity of political parties and democracy itself? Or do judges view such novel political structures as stages in an ongoing trial-and-error process, a “progressive inclusion of the entire electorate in the process of selecting their public officials”—starting with the early twentieth-century requirement that party candidates be selected through democratic election in the first place—in an effort, whether sensible or not, to encourage voter participation and to make government more responsive? When judges confront “fusion candidacies”—in which major and minor parties are permitted jointly to endorse the same candidate—do judges see the specter of “the destabilizing effects of party splintering and excessive factionalism”? Or do judges see a vibrant, robustly competitive political sphere, akin to the economic sphere, in which third parties, like competing producers, exert healthy pressure on major parties to take neglected ideas and interests into account? When judges review the exclusion of ballot-qualified candidates from publicly sponsored campaign debates, do they immediately spy “the prospect of cacophony” and therefore easily defer to judgements of others as to which candidates should be included and excluded? Or instead of such potential disorder, do judges see sufficient value in more open debates as to demand clear, objective standards, specified in advance, before public authorities can make judgments about the inclusion and exclusion of potential candidates? All these are recent, defining moments in the current Supreme Court’s confrontation with issues of democratic politics. In each, the Supreme Court was also divided—twice by 6-3, once by 7-2. But in each case, the five justices who effectively ended Bush v Gore, the lawsuit, and hence Bush v Gore, the campaign, were in the majority. In each case, the Court overturned a federal court of appeals, including an en banc court of appeals, that had analyzed the issues differently. Among the dissenting voices, the one constant, perhaps surprisingly, was that Justice Stevens was the chief spokesman and Justice Ginsburg his constant companion. Bush v Gore is the most dramatic moment in a constitutionalization of the democratic process that has been afoot for nearly forty years, ever since Baker v Carr dramatically lowered the “political question” barrier to judicial oversight of politics. More recently, the constitutionalization has increased in pace, as issues like the status of political parties, the regulation of campaign finance, the role of race and partisanship in drawing election districts—and now, the counting of individual ballots—have been transformed into grist for the constitutional mill. As part of my own effort to explore this emerging constitutional law of democratic politics as a systematic whole, I wasn’t to assess Bush v Gore in this larger context And I want to do so less in terms of doctrinal analysis (there will be time enough for that) or partisan politics (was the decision an act of political will or of legal judgment?) and more as a matter of what we might call judicial culture. By judicial culture, I mean the empirical assumptions, historical interpretations, and normative ideals of democracy that seem to inform and influence the current constitutional law of democracy. Suffice it to say, when judges are as divided among themselves as in the cases I have described—within the Supreme Court as well as between that Court and the lower courts—it might be useful to assume that the formal sources of legal judgment are sufficiently open-textured as not to compel directly a uniquely determinate conclusion. At that point, the implicit understandings of democracy with which all judges necessarily work—whether American democracy is fragile or secure, whether it functioned better or worse at some (partially hypothesized) moment in the past, whether democracy means order and structure or chaos and tumult—have the greatest latitude to operate. Unlike Bush v Gore, the cases I describe have no obvious partisan consequences in terms of the fortunes of the Democratic or Republican Parties or their candidates. Yet it is of considerable moment, I believe, that certain justices consistently gravitate toward the same side of these cases—the five-member Bush majority that terminated the Florida recount on one side, Justices Stevens and Ginsburg on the other. Just as interesting is that Justice Souter, who occupied a sort of middle ground in Bush v Gore, is the justice sometimes in dissent, sometimes in the majority, in these signal cases. Whatever role analytical considerations and partisan politics might have played in Bush v Gore, there is another dimension—the culture one—potentially at work. By looking for larger patterns in the Court’s recent democracy cases, I want to explore that cultural terrain.
Source Publication
The Vote: Bush, Gore and the Supreme Court
Source Editors/Authors
Cass R. Sunstein, Richard A. Epstein
Publication Date
2001
Recommended Citation
Pildes, Richard H., "Democracy and Disorder" (2001). Faculty Chapters. 1964.
https://gretchen.law.nyu.edu/fac-chapt/1964
