Back to the Beginning: An Essay on the Court, the Law of Democracy, and Trust

Abstract

The law of democracy is in a state of incoherence. The experiment begun by Baker v. Carr showed great promise yet soon gave way to disappointment. The promise was one of modest review and respect for political choices made elsewhere. A presumption was still against judicial involvement: absent self-entrenchment or distrust of political outcomes, the Court would stay its hand. But, the reality has been far from that. The presumption has now clearly shifted, and the Court intervenes in politically-charged controversies as a matter of course. This raises a question at the heart of the law of democracy: can we trust the Court to carry out its important yet delicate work in the field of politics? The evidence is not promising. The Court throws its weight around the thicket at will, arbitrarily and irrespective of doctrine, precedent, or history. To the argument that the Court must intervene when the political process is “undeserving of trust,” the question is why we should trust the Court in its stead.

Keywords: U.S. Supreme Court, Law of Democracy, Baker v. Carr, political questions, judicial review