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

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.

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