Overruling Democracy Overruling Democracy The Supreme Court vs. The American People Jamin B.Raskin Routledge NEW YORK AND LONDON Published in 2003 by Routledge 29 West 35th Street New York, NY 10001 www.routledge-ny.com Published in Great Britain by Routledge 11 New Fetter Lane London EC4P 4EE www.routledge.co.uk Copyright © 2003 by Taylor & Francis Books, Inc. Design and typography: Jack Donner Routledge is an imprint of the Taylor & Francis Group. This edition published in the Taylor & Francis e-Library, 2005. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Library of Congress Cataloging-in-Publication Data Raskin, Jamin B. Overruling democracy: the Supreme Court versus the American people/ By Jamin B.Raskin. p. cm. Includes bibliographical references and index. ISBN 0-415-93439-7 (hbk.) 1. United States. Supreme Court. 2. Political questions and judicial power— United States. I. Title. KF8748 .R33 2002 347.73'26—dc21 2002011222 ISBN 0-203-50921-8 Master e-book ISBN ISBN 0-203-57541-5 (Adobe eReader Format) To my mother and father CONTENTS Acknowledgments vi CHAPTER ONE The Supreme Court and America’s 1 Democracy Deficit CHAPTER TWO The Court Supreme 11 Bush v. Gore and the Judicial Assault on Democracy 29 CHAPTER THREE Reading Democracy Out The Citizen Has No Right to Vote and the Majority Doesn’t Rule 66 CHAPTER FOUR Unequal Protection The Supreme Court’s Racial Double Standard in Redistricting 88 CHAPTER FIVE America’s Signature Exclusion How Democracy Is Made Safe for the Two-Party System 114 CHAPTER SIX “Arrogant Orwellian Bureaucrats” How America’s Electoral-Industrial Complex Controls Our Political Debates and Gerrymanders Your Mind 139 CHAPTER SEVEN Schooling for Democracy 166 CHAPTER EIGHT Democracy and the Corporation 193 CHAPTER NINE Unflagging Patriotism The People, the Flag, and the Constitution 216 CHAPTER TEN Democracy Rising Overruling the Court, Rerighting America 235 Notes 276 Index ACKNOWLEDGMENTS In my journey toward becoming a scholar of constitutional democracy, I have had the benefit of extraordinary teachers along the way. None was more powerful in her influence over me than the late Professor Judith N. Shklar (1928–1992), with whom I studied from my first semester as a freshman at Harvard College in 1979 until I graduated in 1983. I then taught with her as a teaching fellow in political theory courses between 1984 and 1987 when I was a student at Harvard Law School. I learned much from a masterful English teacher named Missy Holland and the brilliant scholar of international affairs, Stanley Hoffmann. But, for my purposes, Mrs. Shklar was simply in a class by herself. Mrs. Shklar embodied the best that American radicalism, liberalism and conservatism have to offer. The radical side of Mrs. Shklar linked the possibility of justice on earth to the strength of political democracy. She argued that, in the struggle for justice against power, people must be given the democratic right and space to speak for themselves. She rejected the conservative argument that law-obeying people should be presumed to be content with traditional hierarchies and inequalities. As she put it in a book called The Faces of lnjustice (1990, p. 124): “Tradition is often nothing but the evidence of silence.” It is political democracy and the struggle for it that give voice in history to popular aspirations for greater justice. But Mrs. Shklar did not glorify the victims of injustice. In this sense, she articulated with much greater subtlety the point that contemporary conservatives have been trying to make in the ongoing backlash against “political correctness.” Her point was that the experience of being discriminated against or oppressed does not necessarily instill moral virtue in victims. Many victims turn into bitter and tyrannical people. Some turn around and become oppressors themselves. (Think of victims of child abuse who become child abusers.) The reason that we oppose official tyranny and cruelty is not that the victims are more virtuous than everyone vii else but that everyone has a right to be free, no one has a right to oppress other people, and tyranny generates a paralyzing fear that undermines the capacity for good citizenship and collective social progress. At the heart of things, Mrs. Shklar was a liberal, and hers was a liberalism born of the appalling catastrophes of the twentieth century, which were all too personal for her. She believed in what she called a “liberalism of fear.” The freedom and security of citizens must be guarded against injustice, arbitrary action and cruelty. Sovereign power must be divided up and controlled through the checking and balancing of powers, as James Madison argued. The structural accomplishments of the American Framers were profoundly important, Mrs. Shklar thought, and she castigated snobbish scholars who treated European political theorists as inherently superior to American theorists even though our democratic institutions have been far more resilient and successful than many of their European counterparts. As a liberal, Mrs. Shklar understood that the requirements of justice are a moving target in history since we must listen to the victims of injustice to determine what justice requires. We can keep faith with justice only by way of a supple and open democracy that grants people rights of effective political representation and self-presentation. Democracy without liberalism will undermine freedom, it is well understood, but liberalism without democracy will undermine justice. No democracy without liberalism, no liberalism without democracy. A day does not go by when I do not think of Mrs. Shklar, who died in 1992, but I hope that this book stands up for progressive liberal democracy in a way that would have made her happy (even if she would have, no doubt, argued with every page). At Harvard Law School, where I turned my attention to how the American Constitution structures American democracy, I studied with some of the great legal minds of the age: the towering Laurence Tribe, my constitutional law professor who continues to have a profound effect on my thinking about the Supreme Court; Duncan Kennedy, the intellectual leader of critical legal studies, who taught me to train a piercing skepticism on claims of logical necessity in law; the great legal historian Morton Horwitz; Randall Kennedy, a scholar of surpassing moral and political insight; Daniel Meltzer, whose work on federal courts was brilliantly illuminating; the irrepressible Alan Dershowitz; Susan Estrich, whose class on labor law ignited an abiding interest in the subject; and Gerald Frug, who brought a passionate democratic intensity to the study of local government law. They are obviously responsible for nothing in this book, viii but I will always cherish their intellectual examples and their support over the years. Before reentering academia, I practiced law as an assistant attorney general in Massachusetts and then as general counsel of the National Rainbow Coalition. In the former post, I handled a number of cases relating to constitutional law and election law and learned much from my boss, Attorney General James Shannon, Alice Daniel, who headed the Government Bureau, and Assistant Attorney Generals Tom Barnico, Richard Brunell, and Reed Witherby. Then, as the lawyer for the Rainbow Coalition, I became fascinated with the way that election law structures political conflict. I learned much about how American politics works from Rev. Jesse Jackson, Jr., Minyon Moore, Steve Cobble and Frank Watkins, and became friends with my contemporary, Jesse L.Jackson, Jr., now a congressman from the Second Congressional District of Illinois, whose wonderful book, A More Perfect Union (2001), is far more sweeping than this one in calling for constitutional changes as ambitious as a right to housing, a right to employment, and a right to progressive income taxation. May his career flourish. I became a law professor at American University’s Washington College of Law (WCL) in 1990 and also had the pleasure of serving as associate dean for several years under two great and inspiring deans, Elliott Milstein and Claudio Grossman, who have both been indispensably supportive of my work. All of my colleagues have been helpful. Some have been integrally involved in the development of my ideas about democracy and the Constitution and have in some cases read drafts of these chapters. I want to thank Muneer Ahmad, Padideh Ala’i, Kenneth Anderson, Jonathan Baker, Susan Bennett, Pamela Bridgewater, Susan Carle, Angela Davis, Robert Dinerstein, Darren Hutchinson, Peter Jaszi, Candace Kovacic-Fleischer, Jim May, Mark Niles, Diane Orentlicher, Nancy Polikoff, Andrew Popper, Paul Rice, Jim Salzman, Herman Schwartz, Ann Shalleck, Brenda Smith, Michael Tigar, Robert Vaughn, Leti Volpp, and Rick Wilson. I owe a special debt to my colleague and codirector of WCL’s Program on Law and Government, Tom Sargentich; to my friend and codirector of the Marshall-Brennan Fellowship Program, Steve Wermiel; to my unflappable assistant, Leslie Scott; and to Michelle Carhart, Maryam Ahranjani, Moira Lee, Fahryn Hoffmann and Catherine Beane, the team of people who kept the Marshall-Brennan Fellowship Program humming even when my office door was locked. As a law professor, I have been able to represent, consult and work with many causes and people who have been important to me, including the Service Employees International Union, Greenpeace, Ross Perot, ix Clay Mulford, Russ Verney, Global Exchange, Students United Against Sweat-shops, Ralph Nader, the American Civil Liberties Union, students at Blair High School in Montgomery County and many other high school students across the country.