Abstract

http://ssrn.com/abstract=2362573
 


 



Democracy and Renewed Distrust: Equal Protection and the Evolving Judicial Conception of Politics


Bertrall L. Ross II


University of California, Berkeley School of Law

December 2, 2013

California Law Review, Vol. 101, 2013

Abstract:     
Judicial interpretations of the Equal Protection Clause have undergone a major transformation over the last fifty years. A Supreme Court once suspicious of the democratic losses of discrete and insular minorities, now closely scrutinizes their democratic victories. A Court once active in structuring the democratic process to be inclusive of racial and other minorities, now views minority representation in the political process as essentially irrelevant. A Court once deferential to exercises of congressional power that enhanced the equal protection rights of minorities, now gives Congress much less leeway.

What explains these shifts? An easy explanation is that the Supreme Court has simply become more conservative. But what underlies this conservatism? In this Article, I argue that the Court’s own evolving conception of politics underlies the changes in the meaning of equal protection. In the past, the Court saw politics through the lens of pluralist theory, the crucial defect of which was the risk that minorities would be politically marginalized. That understanding has given way to a public choice conception in which the Court presumes these same minorities to be too politically powerful. In essence, one form of judicial distrust of democratic politics has replaced another.

I argue that two primary sources produced this renewed distrust: changing conservative views of the position of minorities in politics and a conservative legal movement that rejected pluralism in favor of public choice theory as the most accurate description of the operation of politics. I conclude by identifying important normative questions that this theory raises for constitutional law scholars and by offering a prescription for civil rights advocates seeking to influence judicial interpretations of the Equal Protection Clause.

Number of Pages in PDF File: 76

Keywords: Equal Protection Clause, constitutional construction, political theory, pluralism, public choice theory, race, congressional enforcement power, voting rights, constitutional jurisprudence, constitutional interpretive theory, federalism, judicial activism, judicial restraint, political process theory

Accepted Paper Series





Download This Paper

Date posted: December 4, 2013  

Suggested Citation

Ross, Bertrall L., Democracy and Renewed Distrust: Equal Protection and the Evolving Judicial Conception of Politics (December 2, 2013). California Law Review, Vol. 101, 2013. Available at SSRN: http://ssrn.com/abstract=2362573

Contact Information

Bertrall LeNarado Ross II (Contact Author)
University of California, Berkeley School of Law ( email )
215 Boalt Hall
Berkeley, CA 94720-7200
United States
510-643-5788 (Phone)
Feedback to SSRN


Paper statistics
Abstract Views: 637
Downloads: 150
Download Rank: 116,234

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo5 in 0.625 seconds