Democratic Resilience and the Supreme Court's Democracy Problem
Journal Article
Overview
abstract
The Constitution creates a democracy that was intended to last through the generations—"to secure the blessings of liberty" for both the Framers and their posterity. Put simply, the Constitution is committed to an enduring democracy, a principle we refer to as "democratic resilience." Recently, however, in the 2019 case <i>Rucho v. Common Cause</i>, the Supreme Court disclaimed any role in choosing among democratic conceptions, treating that choice as "political" and therefore beyond judicial competence. Neutrality is, of course, one of the core values of America's judiciary, and is especially essential for resolving disputes in controversial cases with political significance. But the Court's recent insistence on neutrality about what democracy requires is wrong both descriptively and normatively. It is impossible for courts to be neutral about the meaning of democracy; indeed, courts constantly choose among competing conceptions of democracy when they define rights, evaluate state interests, and structure political power. More importantly, courts should not be neutral about democracy. Doing so risks the courts contributing to, rather than guarding against, democratic backsliding. Courts can play a key role in ensuring the resilience of democracy by recognizing democratic resilience both as a constitutional value and as an interpretive guide, especially when their decisions will determine the viability of free, fair, and durable self-government. While courts alone may be limited in their ability to stop a concerted effort to erode democracy, their limitations should not give them a free pass. Courts are imperfect instruments of democracy, but they nonetheless play a necessary role in protecting democratic resilience.
