Vol. 26 No. 2 (June 2016) pp. 39-43
UNFIT FOR DEMOCRACY: THE ROBERTS COURT AND THE BREAKDOWN OF AMERICAN POLITICS by Stephen E. Gottlieb. New York: New York University Press. 2016. 416pp. Cloth $55.00. ISBN: 978-0814732427.
Reviewed by Daniel N. Hoffman, Professor Emeritus, Johnson C. Smith University. Email: firstname.lastname@example.org.
In this passionate, copiously footnoted volume, law professor Stephen Gottlieb ambitiously combines the methods of history, political science and legal analysis to assess the state of American democracy. Part I, Traditions, lays out his view of democracy’s core principles. Part II, Political Science, reviews the literature on the forces that tend to support democracy and those that tend to undermine it. Part III, At the Court, examines the role that the Supreme Court, and especially the Roberts Court, has played in a historical narrative that his title glumly labels “breakdown.”
Chapter one, Legacies, argues that since the founding, Americans have shared clear premises about how to protect democracy, and that the Constitution can be soundly interpreted only in the light of these assumptions. Gottlieb relies on selected quotes from original sources and a variety of secondary sources. The founders, he says, “believed in the need to disperse both wealth and power and provide for an educated people. And they assumed that they needed unity, to encourage the population to mix, interact, and work together to develop the country for the good of all” (p. 5). To this end, they focused on travel, commerce, finance and education. Political checks and balances would help prevent abuse, but democracy also required political rights, starting with the right to vote. Beyond this, the powerful must have the character “to stay their hands rather than hold democracy hostage to their own personal or partisan gains” (p. 9). Freedom also depends on economic independence, and disparities of wealth threaten democracy, whether by motivating rebellion or by facilitating the exploitation of dependent masses to rig elections. Thus, Madison in 1792 advocated for “laws, which, without violating the rights of property, reduce extreme wealth towards a state of mediocrity, and raise extreme indigence towards a state of comfort” (p. 11). Over time, the franchise became nearly universal, and election processes were repeatedly reformed. Education, industrialization and military service have served as integrative forces, though racial integration has been resisted and Americanization was sometimes coercive. In their vigorous partisan conflicts, Americans generally have steered far between the extremes of radical egalitarianism and corporate control of politics. The founders’ beliefs about the requirements of democracy deserve to be better recollected and appreciated.
Chapter two, In the Shadow of War, explores the nation’s and the Court’s response to threats to democracy in the first half of the twentieth century. Gottlieb celebrates the Court’s gradual expansion of personal liberties under the Due Process clause and its acceptance of the constitutionality of redistributive New Deal programs. He writes at length about PALKO V. CONNECTICUT, which appealed to fundamental principles underlying all our civil and political institutions, and about the famous CAROLENE PRODUCTS footnote, where the Court acknowledged its special responsibility for protecting those who suffer systematic obstacles within the political process. As he notes, the two cases embody distinct approaches to protecting democracy, and the Rehnquist Court later rejected the latter, more robust one.
Chapter three, Export, examines cases from the same time period that illustrate gradual progress on issues of religious and racial exclusion, punctuated by significant failures like the wartime treatment of Japanese-Americans. Gottlieb next discusses such global developments as the Nuremberg Trials and the UN Universal Declaration of Human Rights, [*40] which were influenced by American constitutional principles but in some respects went beyond them. Newer national Constitutions, such as those in Italy, Germany, India, Canada and South Africa, wisely began to embody explicit socio-economic rights along with political rights and rules allocating governmental powers.
Chapter four, Foreign Courts, is an exercise in comparative constitutional jurisprudence. Gottlieb approves the recognition by the German, Indian, Canadian and South African constitutional courts and the European Court of Human Rights of the principle that democracy requires robust conceptions of economic justice, civil liberties, and protections in the criminal process—a perspective that the Roberts Court does not accept. For some reason, the work of Israel’s Supreme Court is not included in this chapter. The specific foreign decisions mentioned may not all be appropriate for emulation here; “(t)hey stress universal suffrage and equality but take little account of integration and protect less expression than our own courts” (p. 107). Of special interest, perhaps, is the Indian Court’s holding that the citizen’s right to know is a natural right flowing from the concept of democracy.
Chapter five, Rules of Democracy, begins the political science part of the book. While there is ample controversy within political science over definitions of democracy, theoretical models of its rise and fall, and empirical methodology, Gottlieb contends that, taken together, the studies offer clear support for several straightforward conclusions. First, without basic freedoms, democracies wither and die. Second, Bills of Rights alone are not sufficient to protect democracies against external or internal threats. “Unfortunately, America has had dictators” (p. 113). Examples offered range from slavery to urban political machines to abusive law-enforcement institutions. Third, elections must be as inclusive and honest as possible. Abuses such as gerrymandering can be minimized by resort to nonpartisan districting commissions, or by judicial review that employs the scientifically valid approach of symmetry. "Symmetry requires treating both parties the same way, so that a given percentage of the statewide vote should give either party approximately the same number of seats.... A mathematical formula allows measurement that approximates the precision of the one person, one vote standard for apportionment" (p. 121). Fourth, while fear of executive power is well-justified, neither presidential nor parliamentary systems offer a decisive advantage in restraining its abuses. Fifth, the effects of federalism on political stability are highly context-dependent. No one system is generally superior, but power struggles within a federal system are better resolved by political negotiation than by judicially created bright-line rules.
Chapter six, General Welfare, begins with Lipset’s 1959 observation that wealthy, well-educated countries are more likely to be democratic. Despite obvious exceptions like Nazi Germany and democratic India, wealth and rising incomes do correlate strongly with democratic stability. Recent studies confirm that disparities in wealth can be a major factor in democratic breakdown, as pursuit of security can lead the fearful--both elites and masses--to accept a corrupt, repressive government. Capitalism does not ensure political freedom, for concentrated wealth and concentrated power can form a vicious circle inimical to democracy. This suggests “an economic dimension to constitutional law that has been consistently denied in most prior scholarship and opinions” (p. 139).
Chapter seven, A Sense of We, turns to sociocultural concerns such as social capital. Democracy requires cooperation, which depends partly on mutual trust. Yet opinion polls show that tolerance and willingness to compromise are in decline, and Washington has succumbed to polarization. Some of this comes from demographic shifts associated with suburbanization and red-lining. Institutions that used to mingle people of different backgrounds, such as public schools and the draft, no longer do so. “Legal changes share the blame for the contentiousness of contemporary politics” (p. 153). These include changes in how candidates are nominated and elected, and changes that [*41] have fragmented the structure of the media and reduced their legal accountability. A number of well-intended reforms had unintended consequences, but deliberate government actions have also facilitated racial and socioeconomic segregation. Though mutually reinforcing each other, the polarization of leadership is more threatening than that of the masses. Gottlieb looks favorably on open and blanket primaries, which hand the ballot to wider groups of voters, and on reforms of land use and discrimination law as well as criminal justice.
In Chapter eight, Threat of Force, Gottlieb discusses the effects of widespread violence. His first concern is with paramilitaries, which played significant roles in the founding period (Shays’s Rebellion), during and after Reconstruction (KKK), in the corporate struggles against organized labor, in Mafia control of certain large cities, in today’s Patriot Militias, and in government’s increasing reliance on private mercenaries--all threats to civil liberties and democratic government. Weapons must be regulated, because “those inclined toward violence will take advantage of whatever they can” (p. 177). A related problem is systematic abuses of the criminal justice system by police and prosecutors, which often goes without effective remedy. Yet, if democracy requires nonviolent resolution of disputes, arming the public is a dangerous strategy. A professionalized, all-volunteer military also brings risks to the norm of civilian control. In the context of declining national spirit, “[a]rmies become more dangerous when we look at each other with suspicion and contempt” (p. 185).
Chapter nine, Breakdown by Court Order, begins Part III and covers a remarkable range of issues. The first is criminal justice, where the Roberts Court has expanded prosecutors’ immunity from liability for misconduct, raised new procedural obstacles to prisoners’ lawsuits, and denied their right to DNA evidence that might prove their innocence. Second, with regard to voting rights, the Court accepted protection of incumbents as a lawful motive for redistricting, refused to endorse a scientific test for unlawful gerrymandering, and imputed improper racial motivation to districting plans that favored minority voters, but not to those favoring white voters. It sustained a photo identification requirement for voting, invalidated the preclearance requirement of the Voting Rights Act, and struck down a series of campaign finance reforms aimed at limiting the influence of big money. Discussing the reasoning and the impact of these cases at length, Gottlieb concludes that “[t]here are no democratic rights—no rights to vote—that this Court respects” (p. 203). Next, the Court has been highly deferential to many claims of executive power, but not to those involving agency regulations of business. Its view of the Equal Protection clause subjects to strict scrutiny measures aimed at protecting racial minorities or reducing racial segregation. Its Establishment Clause decisions show the same indifference to building community across faiths, and its standing doctrine makes it very difficult to bring suit under that clause.
Turning to rulings on legislation with economic impact, Gottlieb argues that “[t]he Roberts Court has been a cheerleader for the increasing concentration of wealth” (p. 212). This is evidenced by an ensemble of cases that expand the Takings Clause, narrow antitrust law, preempt state laws that give consumers protection broader than those of federal law, protect abettors of securities fraud from liability, impose narrow limits on punitive damages against corporations, approve contracts that force consumers into arbitration and deprive them of access to the courts, create new obstacles to class actions and to suits against discrimination, and deny protection to whistleblowers. Collectively, these decisions shift wealth away from employees and consumers toward businesses.
The chapter then assesses the impact of various Court decisions on the allocation of governmental powers and on social issues. Gottlieb’s focus here is on whether these decisions have raised or cooled divisive passions. Though it may be unclear to what extent the Court should let this concern drive its decisions, it is clear that the Court sometimes does so, and not always wisely. Contrary to Rosenberg, the Court’s decisions matter, and “[i]n each area that [*42] political scientists, historians, jurists, and legal scholars, both in the United States and abroad, have identified as crucial to the survival of democracy, the Roberts court has been leading in the opposite direction” (p. 233). An exception is the movement towards increased protection of gay rights, where “Justice Kennedy has made possible one bright spot on an otherwise exclusionary landscape” (p. 261).
In Chapter ten, Judicial Interpretation for Democracy, Gottlieb defends his approach to constitutional interpretation and refutes the textualism and originalism endorsed by conservatives. Jurists of all stripes profess respect for democracy as a limitation on the judicial role, and consistency requires that protecting democracy be accepted as part of that role. This entails using the findings of social science that help us calculate the political, economic, and social impact of Court decisions. An approach relying solely on text and original history cannot accomplish this. “Writings do not legitimate themselves” (p. 242). Moreover, it is not obvious why the consent of a small part of the 1788 population should bind us now. The founders in debating the Constitution’s meaning relied on a variety of methods, and often did not produce consensus. Legitimacy is properly based on popular sovereignty and contemporary ideas of justice. All judging is purposeful, and judges inevitably are influenced by their ethical beliefs. “American recourse to ethical and philosophical values has been consistently focused on equality and self-government” (citing Jefferson Powell) (p. 249). Like the separation of powers and federalism, democracy is a fruitful structural characteristic of the constitutional text. By ignoring democracy, justices effectively reject it. A “jurisprudence of crumbled language” ignores the values on which the government is founded (p. 255).
Admittedly, there are different versions of democratic theory, and some prefer to say the government is founded on “republican,” not democratic principles. Gottlieb recognizes that democracy can be understood on continua from most to least inclusive and competitive, but claims that the evidence shows that only a more inclusive and competitive system can be trusted to keep elective government alive. This does not dictate pure majoritarianism, but calls for protections of the vote, speech, and “all manner of protections against the abuse of powers of government for the purpose of terrifying and controlling the population” (p. 256). The courts can make positive contributions, but only if they take democracy seriously, as they did from the 1930s to the 1980s.
UNFIT FOR DEMOCRACY offers powerful criticisms of conservative jurisprudence. One can wonder, though, how many conservative minds will be changed. That would require their accepting Part I’s characterization of our political traditions, being persuaded by the political science literature of Part II, and accepting the argument of Part III that the courts can and should act to protect democracy.
Some will insist that only the term “republican” appears in the Constitution, and that Edmund Randolph opened the Convention by introducing the Virginia Plan as a safeguard against the excesses of democracy. Voting rights were left entirely to the states to determine. After two centuries of progress, we are accustomed to calling our system a democracy, but nowhere near consensus on what that actually means. Instead, the party that gave us the Reconstruction Amendments has put them in storage, and we quarrel about whether plutocracy is merely permitted by the Constitution, or whether it is actually guaranteed—a question shrewdly analyzed by Timothy Kuhner. Gottlieb is quite aware of the oppressive and exclusionary elements of our history, but insists that those are illegitimate, because we have always been a democracy. In OUR ELUSIVE CONSTITUTION, I traced back to the founding two competing strands of constitutional thought, which I labelled liberal and conservative. In CIVIC IDEALS, Rogers Smith found three competing strands: liberal, republican, and inegalitarian. These narratives seem to differ less on historical facts or political values than on rhetorical strategies for defending progressive views.
Nor are Gottlieb’s political science findings immune to controversy. Surely we cannot [*43] scientifically measure how close we are to a breakdown of democracy, let alone how many steps a decision like CITIZENS UNITED takes us down that path. By brilliantly linking together seemingly disparate social problems and areas of law, Gottlieb does succeed in raising anxiety about the health of the system, but cannot scientifically demonstrate that we are on the verge of breakdown. In urging reliance on political science, he overlooks the scientific advances in predicting behavior of judicial nominees that may well have helped to polarize the appointment process, with unhappy effects on the Court itself. One is tempted to ask what game theory suggests about when and how Justice Scalia’s vacant seat will be filled.
Part III identifies many recent decisions that Gottlieb deplores, but he does not tell us whether a right-minded Justice would vote to reverse each of them at the first opportunity, or whether a more nuanced, incremental strategy would be better for the integrity of the Court and the health of the larger system. One hypothesis is that a country that accepted BUSH V. GORE will accept anything.
Hoffman, Daniel N. 1997. OUR ELUSIVE CONSTITUTION: SILENCES, PARADOXES, PRIORITIES. Albany: SUNY Press.
Kuhner, Timothy. 2014. CAPITALISM V. DEMOCRACY: MONEY POLITICS AND THE FREE MARKET CONSTITUTION. Stanford: Stanford University Press.
Lipset, Seymour M. 1959. “Some Social Requisites of Democracy: Economic Development and Political Legitimacy.” AMERICAN POLITICAL SCIENCE REVIEW 53(1): 69-105.
Powell, H. Jefferson. 1993. THE MORAL TRADITION OF AMERICAN CONSTITUTIONALISM: A THEOLOGICAL INTERPRETATION. Durham: Duke University Press.
Rosenberg, Gerald. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.
Smith, Rogers M. 1997. CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY. New Haven: Yale University Press.
BUSH V. GORE, 531 U.S. 98 (2000).
UNITED STATES V. CAROLENE PRODUCTS CO., 304 U.S. 144 (1938).
CITIZENS UNITED V. FEDERAL ELECTIONS COMMISSION, 558 U.S. 310 (2010).
PALKO V. CONNECTICUT, 302 U.S. 319 (1937).
© Copyright 2016 by author, Daniel N. Hoffman