Document Type

Article

Publication Date

2022

Abstract

During the latter half of the Trump presidency, as it became increasingly clear that the Supreme Court would remain solidly conservative for the foreseeable future, Samuel Moyn and Ryan Doerfler declared war. In popular and scholarly venues, they have steadily built a case for curtailing the power of the nation’s highest court. Their arguments have been both pragmatic and principled. They have underlined, for instance, the risks the Roberts Court poses to progressive goals such as addressing climate change1 and granting student debt relief. More broadly, they object to a “supra-democratic court exercising its current, expansive legislative veto.” For Doerfler and Moyn, the choice is between juristocracy and democracy and they know where they stand: reforming the Supreme Court, and in particular disempowering it, is necessary for the future of American democracy.

The Ghost of John Hart Ely is Doerfler and Moyn’s latest salvo against American judicial review. This time, however, their strategy is different. Instead of directly critiquing the Supreme Court’s power, they target the ideology that undergirds it. In particular, they identify the work of John Hart Ely as responsible for animating continued liberal belief that a powerful Supreme Court is both necessary and desirable for democracy. Ely famously justified judicial review on two grounds: it was necessary for protecting political minorities against systemic bias and ensuring a competitive political process by “clearing the channels of political change.” While scholars have closely scrutinized Ely’s proceduralism in the decades that followed Democracy and Distrust’s publication, Moyn and Doerfler contend that his real influence — indeed his “ghost” — lives on through the “two empirical conjectures he makes that mainstream liberals share.” Even if Ely’s theory has fallen out of fashion, liberal confidence in the Court has endured because contemporary thinkers continue to hold on to Ely’s assumptions.

In this Response, I examine Doerfler and Moyn’s critique of Ely’s second conjecture: that judges, by virtue of their disinterestedness, are better positioned to protect democracy than the political branches. I focus on this part of their argument for two reasons. First, skepticism about courts’ capacity and willingness to protect minorities is longstanding. Their critique here is less novel than their diagnosis of the underlying theoretical problem, namely Ely’s first conjecture. Second, if Doerfler and Moyn are right about Ely’s second premise being wrong — and I think they are — then there are important consequences for the law of democracy. A core operating assumption for election law is the idea that judges are the one branch citizens can rely on to protect the political process from corrosive self-dealing. Once that assumption is gone, the institutional priorities and aspirations of the field have to correspondingly change. This Response both explores nature and aftermath of Doerfler and Moyn’s exorcism. Only by taking stock how they have vanquished Ely’s ghost can we decide where those committed to a fair and equal political process should go next in a disenchanted world.

Disciplines

Law | Supreme Court of the United States

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