Justice, democracy, and law

Justice, Democracy, and Law is a recurring series by Edward B. Foley that focuses on election law and the relationship of law and democracy.

Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.

I’m delighted and honored to present this, my inaugural Justice, Democracy, and Law essay. I’ve entitled this series Justice, Democracy, and Law because I will focus on the fundamental interplay of these three normative features of our society (or indeed any society). As appropriate for SCOTUSblog, I will pay particular attention to the role that the Supreme Court plays regarding the relationship of these three elements.

As I see it, justice is – or at least should be – the main aim of social relations. The law thus exists to achieve justice. Indeed, the Constitution’s preamble declares this explicitly, listing to “establish Justice” among its core objectives (along with promoting “the general Welfare,” securing “the blessings of Liberty,” and other worthy goals).

In enforcing the Constitution’s commands, the Supreme Court often must try to secure a just outcome directly. The Fifth Amendment, for example, prohibits the government from taking private property for public use “without just compensation,” and so the judiciary must determine what amounts to “just” compensation and order that it be provided. Likewise, to avoid injustice, the Eighth Amendment prohibits “cruel and unusual punishments,” and here the court is tasked with determining what counts as cruel or unusual.

Even when the Constitution is not explicit on what justice requires in a specific context, the court can be called upon to insist that the government not act with obvious injustice. One clear example is the 1977 case of Moore v. City of East Cleveland. In that case, a local zoning ordinance made it a crime for a grandmother to live at home with her two grandchildren when those two grandchildren were first cousins rather than siblings.

The Supreme Court struck down the zoning ordinance as unconstitutional. Although there was no specific clause of the Constitution that addressed this exact situation, a majority of the justices on the court (Justice Lewis F. Powell writing for four justices, and Justice John Paul Stevens writing separately) found it unconscionable for the government to criminalize a grandmother’s efforts to provide a home for her grandchildren. Whether justified by the Ninth Amendment’s pronouncement that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” or otherwise, the court was not going to let this gross injustice – contrary to the “tradition” of “extended family households” that has a “venerable” history in our society – continue. The court admitted that the idea of unenumerated constitutional rights susceptible to judicial enforcement is “treacherous,” requiring “caution and restraint.” Nevertheless, the majority refused to withhold its power to rectify such an egregious wrong.

But the principle invoked in Moore v. City of East Cleveland must be circumscribed. Reasonable disagreement over what justice requires in various contexts requires the court to refrain from imposing its conception of justice without an applicable directive in the Constitution for the court to enforce. In other words, the court cannot pull its sense of justice out of thin air, but must instead ground it in the Constitution itself. And here is where democracy comes in: Good-faith debates over the demands of justice should be resolved democratically, with each citizen having equal input on either what the content of the law should be (like in a referendum) or the choice of the elected officials who will determine the law’s content (as in a representative government). 

What then is the court’s responsibility to assure that democracy exists to enable the just resolution of disputes?

There was a time when the court saw itself as responsible for guaranteeing that legislation be the product of democratic procedures. Perhaps the court’s most emphatic expression of this self-conception came in the 1969 case of Kramer v. Union Free School District No. 15. This case involved a state law that limited the right to vote in school board elections to only citizens who had children in the local public schools or who owned or rented real estate in the school district. The court invalidated this statute on the ground that it unconstitutionally denied equal voting rights to other adult citizens residing in the school district. The majority justified its exercise of “strict scrutiny” – the most stringent constitutional test – over this denial of the right to vote on the ground that protecting fair democratic process meant that the court would not need to assess the fairness of the substantive social policies enacted by the legislature. That is, so long as the process was fair, the court would not have to weigh in on the law that resulted from this process.  

As the court declared, “[a]ny unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government.” Consequently, the court saw its own role in reviewing the validity of legislation as hinging on whether the legislation was democratically enacted: “The presumption of constitutionality and the approval given ‘rational’ classifications in other types of enactments are based on an assumption that the institutions of state government are structured so as to represent fairly all the people. However, when the challenge to the statute is in effect a challenge of this basic assumption, the assumption can no longer serve as the basis for presuming constitutionality.”

In other words, the court need not concern itself with the justice or injustice of laws enacted by legislatures if – but only if – the legislatures that enacted them are sufficiently democratic in character. Insofar as a local school board is a legislative body that enacts the rules governing educational policy for the local district, it too must comply with the same minimal requirements of democratic procedural fairness as the general legislature for the state.

Indeed, the judicial philosophy expressed in Kramer was the foundation for John Hart Ely’s magisterial Democracy and Distrust: A Theory of Judicial Review. Ely sought to curb the court’s role over substantive questions of justice and confine it instead to matters of democratic procedure. I confess that I have been deeply influenced by Ely’s account of judicial review, as have many other scholars – especially those, like me, who focus on the field of election law.

But the judicial philosophy animating Kramer and Ely’s work is not what guides the current court. That dispiriting truth was most evident in 2019’s Rucho v. Common Cause, the 5-4 decision that refused to exercise judicial review over partisan gerrymandering. Chief Justice John Roberts, writing for the majority, professed an inability to distinguish excessive from permissible partisanship in drawing legislative district lines.

This is not the place to relitigate the merits of Rucho. Instead, at this moment of unprecedently egregious gerrymandering – when the Texas Legislature is endeavoring to redraw the state’s congressional districts at the behest of President Donald Trump in a brazen and unabashed attempt to prevent voters from turning control of the House of Representatives over to Democrats for the next two years, and when this power grab is just the latest indication of democracy under attack in the era of Trump – one wonders whether there is any new idea that could convince the majority of the court to play a greater role in safeguarding democracy.

I’m not unduly optimistic, but I offer one idea anyway. It is that the court could recognize a “dormant” elections clause doctrine analogous to the “dormant” commerce clause. (I’ve raised this idea in a law review article.) The best way to understand the court’s dormant commerce clause doctrine is as the court’s effort to implement the values implicit in the commerce clause, which grants Congress the power “to regulate commerce … among states.” From this, courts have inferred that states also may not prevent trade between one another, and the Supreme Court has nullified state laws it views as protectionist or discriminatory against interstate trade. It’s called “dormant” precisely because there’s no congressional statute on point preempting the nullified state law.

The key feature of the dormant commerce clause is that Congress has the last word. The commerce clause power belongs to Congress, and a decision of the court to invalidate a state law on dormant commerce clause grounds is not regular constitutional law requiring a constitutional amendment to overturn the outcome. Instead, a dormant commerce clause ruling is an effort by the court to aid Congress in fostering the relevant constitutional norm – free trade among the states – and if Congress disagrees with the court on how best to do that, then the will of Congress prevails.

The same approach makes sense for the elections clause, which empowers Congress to write the rules for the time, place, and manner of congressional elections. The relevant constitutional value regarding elections to the House of Representatives is that “the people” of each state choose their representatives. In defiance of this, the Texas Legislature is attempting to redraw congressional districts so as to turn several blue seats red. But political power in the House of Representatives, according to Article I of the Constitution, should derive from the choices that the “people” wish to make about who should represent them in Congress. The mid-decade move by the Texas Legislature is predicated solely on the desire to frustrate that popular choice, and thus it contravenes the very concept of self-government that is directly embodied in Article I of the Constitution. The court could say so, while leaving it to Congress to have the last word since it is Congress that ultimately has the power under the elections clause.

This dormant election clause doctrine would be very different from what the court considered and rejected in Rucho. There the court was asked to invalidate a partisan gerrymander in a way that would require a constitutional amendment to undo the court’s decision. That obviously is a much more momentous matter.

A dormant election clause doctrine would keep the court in a much more limited and subservient role – one consistent with the Rucho majority’s fear of judicial overreaching, since the court would be handing power back to Congress.

The Constitution itself mandates democratic elections to the House of Representatives and lets Congress ultimately determine how to implement that requirement. In exercising a dormant election clause doctrine, the court would thus be facilitating this provision of the Constitution, just as it facilitates the commerce clause and congressional power when it plays its “dormant” role in that context.

Let’s hope, at this moment of acute peril for American democracy, that the court can see its way to this limited means of protecting the electoral power of the “people” that the Constitution itself demands.