In a recent column, George F. Will attacked Pamela Karlan's recent Harvard Law Review essay "Democracy and Disdain." Objecting to the Stanford law professor's many examples of Roberts Court conservatives reflecting disdain for the work of Congress, Will asserts that Karlan "misses the point of judicial review." Karlan, Will charges, assumes "that restraints on its power are presumptively anti-democratic." Will, however, misunderstands the point of Karlan's brilliant essay. Constitutional restraints do not require assumptions that legislators are acting in bad faith, and judicial review should facilitate rather than interfere with the democratic participation.
The title of Karlan's essay invokes John Hart Ely's classic book Democracy and Distrust. Ely's book was a response to legal scholars across the political spectrum claiming that the jurisprudence of the Warren Court was just incoherent activism. Ely argued instead that a powerful thread ran through the landmark decisions of the Warren Court, most notably Brown v. Board and the cases that required state legislatures to represent their citizens equally. The Warren Court, Ely argued, was responding to the fact that some groups were shut out or underrepresented from the democratic process. To accuse the Court of "usurping" Southern legislatures when large numbers of citizens were disenfranchised, for example, was senseless. The courts owed deference to decisions reached by properly functioning democratic processes, not to institutions that excluded large numbers of people.
The Roberts Court, Karlan notes, has turned Ely's idea on its head. Unlike the Warren Court, the Court has consistently expressed contempt towards duly elected majorities in the elected federal branches. But even worse, it has often stretched the law to defend interests that are already overrepresented in the political process. As a result, the rights of underrepresented minorities get left behind. Karlan cites Justice Scalia's strange argument that Section 5 of the Voting Rights Act's renewal through bipartisan majorities (which the Roberts Court appears poised to overturn) was a reason for the courts to be particularly skeptical. Will agrees with Scalia, asserting that "Congress, indifferent to evidence, continued to sacrifice federalism merely to make a political gesture."
This is wrong in several respects. First of all, the relative effectiveness of the Voting Rights Act is a bad reason to rule it unconstitutional. Second, the very success of the Voting Rights Act in enfranchising racial minorities has resulted in a wave of vote suppression tactics at the state level. This backlash of disenfanchisment proves that the need for federal intervention has hardly vanished. (Will, in a column dripping with the same remarkable contempt for basic democratic values as the Roberts Court, strongly approved of vote suppression and argued that low voter turnout as healthy for democracy.) And finally, Will does not explain why precisely the Voting Rights Act has become unconstitutional. By citing vague concerns about federalism, he avoids citing the relevant Constitutional provision, which says that "Congress shall have power to enforce this article by appropriate legislation." Basic democratic values suggest that it should be Congress that determines which legislation is appropriate to the task, not the courts.
The constitutional debate over the Affordable Care Act, which the five Republican appointees to the Supreme Court ruled exceeded the congressional power to regulate interstate commerce (although Chief Justice Roberts grudgingly upheld it as an exercise of the tax power) is another case in point. The constitutional argument against the Affordable Care Act was not only contemptuous of Congress but based on weak, ad hoc arguments specifically tailored to argue against a policy conservatives disliked. In particular, the arguments made by the conservative dissenters about the Necessary and Proper Clause were so incoherent as to be self-refuting: the individual mandate was allegedly so irrelevant to the ACA as to not be necessary to a regulation of interstate commerce but also so integral to the regulatory framework of the legislation that it could not be severed. As Karlan notes, the conservative justices's "selective trust of the political system maps disturbingly onto the current preoccupations of conservative political movements."
Will is also wrong to cite James Madison in behalf of stretching the text of Constitution to hold legislation conservatives dislike on policy grounds as exceeding federal power. Madison certainly believed in limited government, but he believed that the primary limitation on federal power was to be found in the checks and balances that makes legislation very difficult to pass. Indeed, in the Virginia Plan—which more closely reflected Madision's views than the Constitution that emerged from the compromises of the constitutional convention—these political checks were the only restraint on federal power. (When Justice Ginsburg argued in her opinion in Sebelius that the "democratic process" represents a "formidable check on congressional power," she demonstrated a better understanding of Madisonian principles than Will.) Madison believed in a flexible approach to federalism that was deferential to legislatures rather than skeptical: If "the people should in future become more partial to the federal than to the State governments," Madision argued in Federalist #46, "... the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due." And while conservatives like Will believe that the federal government was a greater threat to individual liberties than state governments, Madison presciently believed the opposite.
Despite Will's claims, Karlan does not believe that restraints on government power "are presumptively anti-democratic." Like the Warren Court, in general she takes the specific individual rights guaranteed by the Bill of Rights more seriously than contemporary judicial conservatives do. (It should be noted that many of these rights, including the Establishment Clause of the 1st Amendment and the 4th Amendment, are as or more likely to be violated by unelected officials such as police officers and school principals than by elected legislatures per se.) But respect for individual rights does not require contempt for democratic processes and elected officials. The judicial conservatives Will favors, alas, have given us the worst of both worlds: contempt for the democratic process without appropriately respecting individual rights unless they allow monied interests to dominate the political process.