American democracy is under siege. This is so because of the confluence of three trends: (1) demographic change and residential segregation, which increasingly have placed more racially diverse Democratic Party voters in cities and suburbs, while rural areas have become more white and Republican; (2) a constitutional structure—particularly the Electoral College, the composition of the Senate, and the use of small, winner-take-all legislative districts—that gives disproportionate representation to rural populations; and (3) the willingness of this rural Republican minority to use its disproportionate power to further entrench counter-majoritarian structures, whether through extreme partisan gerrymandering, increased voter suppression efforts, court-packing, or outright rebellion against the results of democratic elections. These three trends create the very real prospect that for the foreseeable future a mostly white rural Republican minority wields disproportionate, structurally locked-in, power over a more diverse urban and suburban Democratic majority. A democracy cannot survive long under those conditions.
In order to rescue the possibility of democratic self-government, we argue that judges must begin to apply heightened scrutiny to legislation or executive action that seeks to entrench the political power of a rural electoral minority or that discriminates against urban and suburban populations. In making this argument, we seek to revive the political process rationale for heightened judicial scrutiny that has long been associated with constitutional scholar John Hart Ely and his interpretation of Chief Justice Stone’s famous footnote 4 of the decision in United States v. Carolene Products Company. Both Stone and Ely were particularly focused on the potential ways the political system was skewed to deny Black people effective political representation, as well as the many circumstances through which de jure racial discrimination denied racial minorities equal rights. But there is no reason that the Carolene Products theory as elaborated by Ely needs to be confined only to this context. To the contrary, the whole point of Ely’s theory of judicial review is that it contemplates judicial intervention whenever the prevailing political system is systematically disadvantaging one group in order to lock in political advantages to another group. In such circumstances the democratic process is not functioning properly, and judicial intervention is not a threat to democracy, but a necessity in order to preserve democracy. We argue that our current political moment calls for a robust application of the Carolene/Ely principles of judicial review, and we provide examples of situations where heightened judicial review is appropriate. The democracy-protecting approach advocated in this Article also provides an additional basis for criticizing the newly minted, ahistorical “independent state legislature” theory embraced by some Supreme Court justices because it would allow minority factions to further disenfranchise the majority of the population by severely reducing, if not eliminating, the possibility for meaningful judicial review by state or federal courts.
GW Paper Series
24 J. Const. L. 766 (2022). https://perma.cc/4NWE-VG7K