We live in the midst of a pervasive and sustained democratic crisis. Our society expresses a deep commitment to core notions of freedom, justice, and equality for all citizens. Yet, it is equally clear that our democracy tolerates a great deal of social and economic inequality. Membership in a socially disfavored group can (and often does) profoundly distort one's life chances and opportunities. Our constitutional democracy acknowledges this tension, providing for both majority rule and the protection of minority rights and interests. Although we seek to safeguard minority rights and interest through express legal prohibitions on the subordination of socially disfavored groups, our society nevertheless retains informal structures and networks that have the effect of perpetuating social inequality among groups - social inequality that was once secured by formal law. Confronted with entrenched and destructive patterns of social and economic stratification, what more can law do to realize democracy for members of subordinated groups? This paper offers some preliminary thoughts on how law should respond, and in particular, what we might ask of judges and the Constitution that they interpret and uphold. The paper presents a normative and descriptive account of "successful" judging in constitutional civil rights cases in a democratic society. By "successful," I mean to describe a style of judging that is self-consciously engaged in the constructive enterprise of giving full meaning and content to minority rights in a manner consistent with the best of the American democratic tradition of freedom and majority rule. Successful judging, then, is judging deliberately styled to realize democracy for subordinated groups in American society. I seek to accomplish three main tasks in this paper. First, I argue for a particular understanding of the judicial role within our constitutional democracy in the contentious area of race relations. Second, I argue that judges committed to realizing democracy for members of socially disfavored groups should embrace an antisubordination interpretation of the Fourteenth Amendment and the Court's equality jurisprudence as a guiding principle of adjudication for constitutional cases that pit the rights and interests of socially disfavored and minority groups against majority rule. Third, I provide a functionalist account for how this idealized style of adjudication works. Drawing upon the insights and impressions of free jazz movement and musician Ornette Coleman in particular, I argue that the hallmarks of Coleman's work - freedom, improvisation, reimagination, and courage - serve as useful points of departure for deepening our understanding of what judges committed to realizing democracy for members of subordinated groups do or ought to do.
Alabama Law Review, Vol. 54, 2003