7 - Judging Democracy's Boundaries

Summary

The modern American experience with judicial oversight of the political process approaches the half-century mark. In that time, the discomfort with judges supplanting the decisions made through the political process has waned. Except in extraordinary times, such as the election of 2000 or when the Supreme Court assumed active vigilance over racial representation in the 1990s or in the current controversies over corporate expenditures on political campaigns, the idea that courts have a role in superintending the functioning of the electoral process no longer triggers grave constitutional concern. It may be that the American legal system has shed its concerns over the countermajoritarian dilemma, to invoke Alexander Bickel's timeless formulation (Bickel 1986). More likely, however, is that there is now a sense of the familiar about the idea of judicially enforceable rights in the political process, the concept that took hold starting with the reapportionment cases of the 1960s (see Baker v. Carr 1962; Reynolds v. Sims 1964). Just as likely, this comfortable sense of familiarity is the result of the ability of the Supreme Court to package questions about the integrity of the democratic process within the safe confines of individual rights.

Thus, when Justice Brennan, in Baker v. Carr (1962) proclaimed malapportionment justiciable, he did so within the “familiar” confines of equal protection law (226), rather than the more searching inquiry offered by the Republican Guarantee Clause (218).