Democracy and Distrust

...Is it that John Ely, playing the role of a "liberated" judge wants to save women even from themselves...

...They remember that, so often in the course of oral argument before the Court, former Chief Justice Earl Warren would stop counsel and ask: "But, counselor, what is fairV Scholars like Archibald Cox and the late Alexander Bickel have been sympathetic to such humanitarian concerns but at the same time wary of judi' cial subjectivity and aware of the need not to give the Justices carte blanche...

...It pulls together much excellent writing that John Ely has done for our leading law reviews and, as is the danger in such enterprises, is not as well organized as it might have been...

...What about the crippling effects of poverty, the apathy and despair which so often result in people giving up on the political process...

...One additional possibility is that women haven't really consented to legislation that assumes they should be in certain roles...

...One of the main concerns and achievements of the Warren Court was to expand the constitutional safeguards given freedom of speech, without which the right to vote would be seriously impaired...

...Yet as the continued popularity of the traditional values represented by Anita Bryant and the Miss America pageant demonstrate, a great many women seem content with things as they are...

...The judiciary's attempts, with due respect to precedent and tradition, at defining what is "fundamentally fair," do not seem more risky...

...The date of passage of a given law seems Commonweal: 250 to our author an anchor to the judicial inquiry, allowing little play in the joints for that dread disease, judicial subjectivity...

...Professor Ely is a former law clerk to Chief Justice Warren (the book is dedicated to him), a colleague of Professor Cox at Harvard Law School and an admiring former student and colleague of Alexander Bickel's at Yale Law School...

...Is it not very tricky business for a federal judge to rule—in objective, principled fashionthat votes by members of such groups have not been "effectively" exercised...

...For this reason, our Constitution contains a Bill of Rights and most notably the due process and equal protection clauses, binding on the states as well as the federal government...

...So what is the problem...

...The justices should not be hidebound by the specific language of the Bill of Rights but must deal realistically with many issues the Founding Fathers could never have foreseen...

...Ford danger of becoming an oligarchy instead of a democracy...

...Clearing the channels of political change does, of course, not limit judges only to protecting the right to vote...

...He cites the Supreme Court's often overlooked, but very important, 1977 decision in Casteneda v. Partida, where it was held that a prima facie case of discrimination in jury selection against MexicanAmericans still could constitutionally be made out even though MexicanAmericans were the governing majority in the affected county...

...What these individuals fear is obvious: if judges, particularly the Justices of the Supreme Court, are given too much leeway to read their own subjective notions of what is right into the Constitution, instead of accepting the legislative judgment, our country will run the DEMOCRACY AMD DISTRUST A Theory of Judicial Review John Hart Ely Harvard University, $15, 304 pp...

...Some justices, the late Justice Hugo Black being an outstanding example, have insisted that courts may appropriately interfere with the work of the political branches only if authorized by specific provisions of the Bill of Rights or readily available inferences from them...

...Or perhaps this is because the author tries to touch, at some depth, on most major constitutional issues of the day before he lets us put the volume down...

...Were a legislator's statements to a newspaper really what motivated him in the give-and-take of cloakroom tradeoffs...

...Other legal thinkers have insisted that our Constitution, to be viable, must be capable of growth and of reflecting the evolving moral standards of the times...

...Some are an important force in the population of some cities and a minority in others...

...These were certainly interventionist decisions, but the interventionism was fueled not by a desire on the part of the Court to vindicate particular substantive values it had determined were important or fundamental, but rather by a desire to ensure that the political process — which is where such values are properly identified, weighed, and accommodated — was open to those of all viewpoints on something approaching an equal basis.'' Ely has a point here: 25 April 1980: 249 Chief Justice Warren himself believed that Baker v. Carr, the "one man, one vote" reapportionment decision, was of even more significance than Brown v. Board of Education...

...For example, he asks: "What about legislation which some women claim adversely affects them...

...For example, according to a 1978 NBC poll, more men than women supported the Equal Rights Amendment...

...John Ely believes that, rather than second-guessing the legislature's judgments and substituting policy choices of their own (no matter how "moral" these may seem to many of us), federal judges must instead concentrate on keeping the political process open...

...How can a court tell whether they have subtly been intimidated into "going along" with the repassage of a pre-1920 law...

...Democracy and Distrust by John Hart Ely is a major exploration of this controversy...

...Its chief achievement was to act vigorously to "police the process of representation": "That Court was...

...Ely argues that until comparatively recently, when the Gloria Steinems of this world took up the cause, most women persisted in a Casteneda-like acceptance of the classifications passed by male legislatures, even though many such laws were enacted before 1920, when ratification of the Nineteenth Amendment first constitutionally allowed women to vote...

...Yet in the end, Democracy and Distrust seems only slightly to "solve" the problems of judicial review of legislative action...

...Maurice deG...

...Or whether they have learned the sophisticated art of "logrolling...

...Yet I too once sat at the feet of Alex Bickel...

...25 April 1980:251...

...If today's legislatures, containing an increasing number of women, want to repass such laws, they should be upheld...

...And how is the Court to evolve and apply them...

...They should step in only when some group has been denied the franchise or when they deem some group, while technically represented, to be functionally powerless...

...Many, like those of Eastern European ancestry, are rather in-between...

...One by one the putative sources for such decisions fall beneath Ely's scrutiny—"natural law," "the traditions of our people" (every judge becomes his own historian), "reason," and contemporary society's "widely shared values...

...Still Ely is uneasy, noting that "there remains something that seems right in the claim that women have been operating at an unfair disadvantage in the political process, though it's tricky pinning down just what gives rise to that intuition...

...Justice Thurgood Marshall, who knew from long experience how Negroes went along with white stereotypes, spelled out the reason why: "Social scientists agree that members of minority groups frequently respond to discrimination and prejudice by attempting to disassociate themselves from the group, even to the point of adopting the majority's negative attitudes toward the minority...

...This is a well and colloquially written book, although probably much more accessible to lawyers versed in constitutional law than to lay readers...

...the first to move into, and once there, seriously to occupy, the voter qualification and malapportionment areas...

...to be vindicated by the Court against other values affirmed by legislative acts...

...I wish Ely had done more with this topic...

...Yet as soon as the existing deathpenalty statutes were struck down in Furman v. Georgia, there was a virtual stampede by the states to reenact other versions of them...

...They believe that the Supreme Court must be especially vigilant to protect citizens against the deprivation of fundamental rights, even if these rights are not fairly specifically mentioned in the Bill of Rights...

...Democracy and Distrust does not satisfactorily resolve these questions, but at least it attempts to grapple with them—and they are perhaps the hardest questions in American constitutional law...

...Justices William Brennan and Thurgood Marshall fall into this camp...

...Judges should step in only when the market is malfunctioning: Malfunction occurs when the process is undeserving of trust, when (1) the ins are choking off the channels of political change to insure that they will stay in and the outs will stay out, or (2) though no one is actually denied a voice or a vote, representatives beholden to an effective majority are systematically disadvantaging some minority out of simple hostility or a prejudiced refusal to recognize commonalities of interest, and thereby denying that minority the protection afforded other groups by a representative system...

...Indeed, that is the very reason why we have a Constitution to be interpreted...

...Indeed, women are a majority of the electorate...

...The Burger Court's recent record in this regard has not been as promising, especially as regards the press...

...They must show special solicitude for "discrete and insular minorities" whom prejudice has kept from fully and effectively enjoying the fruits of politics...

...Early on, however, our Founding Fathers realized that sometimes the system will malfunction...

...He convinced me how thorny a thicket that kind of second-guessing of a legislature places the judiciary in...

...Yet women are by no means a "discrete and insular minority," as blacks and Chicanos have traditionally been...

...To use an analogy from our anti-trust laws, the marketplace should govern...

...Ely urges that laws disfavoring women passed before that date should be declared unconstitutional...

...Yet can they' 'fully and effectively" exercise their vote...

...Democracy and Distrust is a careful and serious work of scholarship, one of its principal virtues being that John Ely, unlike a number of polemicists, tries manfully to bring out and deal with arguments that go against his point of view...

...There are, to be sure, far more women in today's legislatures, albeit a minority...

...In 1972, for example, Justices Brennan and Marshall argued that the death penalty should be held unconstitutional because it was not in accord with our country's present values...

...Although Alexander Bickel was one of the prime critics of the Warren Court for becoming enmeshed in a' 'web of subjectivity" (a fact that our author does not clearly bring out), Ely sees him involved in a tragic, lifelong pursuit of the wrong question—"Which values . . . qualify as sufficiently important or fundamental...

...He unmasks judges who, pretending, often quite honestly, to base their rulings on "neutral principles" or some "objective" criterion, are really importing into the Constitution their own notions of what is right...

...Women, as a class, are not in some ghetto isolated from legislators but, in most instances, married to them...

...In a democracy, the theory goes, important societal decisions should be made by the people, through their elected legislative representatives...

...This is the chief issue in judicial review — when are the courts justified in striking down an enactment of Congress or a state legislature as unconstitutional...

...John Ely has not convinced me, at least not yet...

...In a brilliant chapter, Ely demonstrates how elusive the search has been for these so-called "fundamental values" (such as the right to privacy, more recently transmuted into the right to an abortion...

...One gets a flavor, from the foregoing, of the thoughtful, probing nature of John Hart Ely's mind...

...In a lengthy section, Ely says that judges should inquire closely into legislative motivation—and he is one of the country's foremost experts on that subject...

...We can assume, in this day and age, that Poles, Lithuanians, blacks, Chinese and Irish at least have access to the voting booth...

...Rather than play wise guardians dictating values, the Justices of the Supreme Court should act more like referees—at the political fight...

...To be sure, much legislation seems to stereotype women, presuming that they primarily belong in the home and are not as suited to the work of the world as men...

...While the Warren Court is popularly perceived as having played somewhat footloose and fancy free with the Constitution's text in order to write the majority's notions of what was just or fair into our law, Professor Ely sees a "deep structure" in that Court's decisions which is not nearly as subjective...

...The majority, moved by prejudice or tides of popular passion, will work its will oppressively on a minority...

...In part, yes...