Tucker, David --- "The Supreme Court and Election Law: Judging Equality from Baker v Carr to Bush v Gore" [2004] FedLawRw 24; (2004) 32 Federal Law Review 505
BOOK REVIEW
RICHARD
HASEN, THE SUPREME COURT AND ELECTION LAW: JUDGING EQUALITY FROM BAKER V
CARR TO BUSH V GORE (New York University Press, 2003)
David Tucker[*]
Richard Hasen's The Supreme Court and Election Law describes and evaluates the United States Supreme Court's recent work regulating the political process. It also develops a thoughtful and provocative theory for guiding judges when they deal with difficult electoral law problems, providing a new prism from which to view constitutional developments in the United States ('US'). The contribution to jurisprudence is enough in itself to ensure that this book will be of interest even to those who are not electoral law specialists. The scholarly and refreshing manner in which Hasen approaches the many cases he discusses will also ensure his commentary is widely read. Australians who are interested in law and political science will find this informed analysis of the US system indispensable.
Hasen is specifically interested in the Court's political equality jurisprudence, looking at judicial policies that impact on wealth, race and the role of political parties. As Hasen shows, the Supreme Court plays an important role in all these areas and has been enforcing core equality principles since the early 1960s, ensuring that governments do not:
• Discriminate on the basis of race or wealth,
• Censor speech (allowing some voices to be heard but not others),
• Prevent people from organising themselves into groups to pursue political objectives collectively.
Hasen thoroughly approves of this aspect of the Court's work. Thus, his analysis is both normative and descriptive. He thinks the justices have been identifying core equality principles and he argues that they are right to do this. He also tells us that some degree of judicial guardianship is necessary even when legislators are themselves claiming to pursue equality because elected officials are constantly looking for ways to entrench themselves in office and will try to manipulate the electoral process. As he explains, '[t]he potential for self-interested legislation lurks behind all election laws and the courts must skeptically inquire whether the means of achieving equality closely fit the ends of the law'.[1]
This guardianship rationale for judicial review is very similar to the position developed and defended by 'process theorists' who have taken up John Hart Ely's line of argument in Democracy and Distrust.[2] But Hasen takes trouble to criticise Ely and distinguishes his own position.[3] What he claims is that process theory 'masquerades as a purely procedural … basis for review'[4] but actually relies on a substantive value commitment to equality. His own approach makes this fundamental value commitment more explicit.
Hasen's historical research shows that the Supreme Court has been imposing a conception of democratic politics that is essentially egalitarian since 1962, when the justices declared that they were unable to tolerate a situation where electoral district boundaries unfairly favour rural voters (in Baker v Carr[5]). As Hasen notes, this judgment accurately reflects changes in the political culture at the time because, thanks to the Civil Rights Movement, Americans had begun to think of themselves as a nation of equals.
It is not surprising that Hasen applauds the Court's intervention. He wants committed judges who are not simply prepared to act as honest guardians of the existing rules but who will supervise fundamental social changes through their judgments and deliberation. The judicial task, as he sees it, is to identify the evolving conception of democracy that the nation shares at any given time by enforcing core shared values. However, he tells us that the justices must also, and at the same time, work to shift the system towards greater equality. Hasen's ideal judges, then, are facilitators who allow a national deliberation to evolve but who respond to changing values by implementing principles that have come to be broadly acknowledged, thereby educating the nation about its own core value commitments. In contrast, Ely wants judges to be neutral umpires of the electoral process.
A problem with this approach is that there is no easy objective way to identify the relevant core principles that Hasen thinks are so important and there may well be a clash between equality and another core value that will need to be resolved. Although his historical research enables him to identify three core equality principles that 'hardly would be controversial'[6] it also shows that each of these principles was very controversial when first applied. This is illustrated by his account of Baker v Carr, reviewing the debate on the Supreme Court about the wisdom of imposing any principle of equality at all, and by his discussion of conflict in Bush v Gore,[7] the last case in his survey, over whether the Court should embrace Al Gore's conception of equality (that as many valid votes as possible be counted) or George W Bush's idea (that recounting of the ballots may only proceed if it is conducted in an orderly manner, using the same standard in all counties).
Hasen's way around the perennial disagreements that characterise development in constitutional law is to develop a dual track approach. He wants judges to be vigilant and unrelenting in enforcing core principles that everyone recognises, such as 'one person, one vote'; but he also wants them to be cautious about intervening in situations where the values in question are contested and various competing principles and conceptions of democracy are in play. As Hasen notes, many political equality claims remain highly contentious. In this circumstance, he tells us, the Supreme Court 'should not act on its own to take sides'.[8] Unless a core principle is applicable, he wants the justices to develop strategies for resolving the differences through a dialogue between the judiciary and other branches of government and also by allowing lower-court judges to undertake much of the work. This does not mean that Hasen wants Supreme Court justices to defer completely to other policy-makers. He advocates a continuous and sceptical judicial questioning to ensure that legislators do not secure any electoral advantage. However, Hasen wants the justices to resist the temptation to resolve issues in controversial cases by imposing a contested principle of their own choosing. He advocates that the Supreme Court should deliberately devise strategies that encourage experimentation and the formation of a broad consensus. In his view, the justices should not usually stand in the way when legislators try to pursue a vision of political equality in good faith. As he notes, '[t]he fact that a government action imposing political equality is not constitutionally required in no way indicates that it should be constitutionally prohibited'.[9] In this connection, he also recommends that the Supreme Court should generally articulate vague and abstract commitments in the more difficult contentious cases so as to allow lower courts leeway to find appropriate ways forward, again encouraging experimentation and change.
The landmark campaign finance case Buckley v Valeo[10] illustrates the strengths and weaknesses of Hasen's approach. In this case, the Court frustrates an attempt by Congress to regulate the campaign finance system by amending the Federal Election Campaign Act ('FECA')[11] to secure greater fairness. The case is significant because seven justices seem to embrace a conception of free speech that presents a direct challenge to egalitarian liberals like Hasen, declaring, 'the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment'.[12]
It is not obvious that Hasen can complain about Buckley. The justices identify two relevant core free speech principles — that campaign speech must be free and that wealthy speakers must not be discriminated against — and they enforce these vigorously. This, seemingly, is precisely the course of action that Hasen has advocated in considering the application of egalitarian principles. Yet he is deeply unhappy about this outcome and uses Buckley as an example to illustrate what he thinks Supreme Court justices should not be doing. Rather than imposing its own understanding of free speech as a core value, Hasen tells us that the Supreme Court should have deferred to Congress' judgments about the importance of equality and the need to curb the flow of money in election campaigns. The use of judicial power to frustrate legislative attempts at reform of the campaign finance system is unwise in this kind of case, according to Hasen, because the underlying conception of 'free speech' that the justices say they are relying upon and which they claim to be a core value is actually contested.
To establish whether a principle is part of the core that the justices must enforce Hasen's test is whether there is a social consensus about this,[13] reflected in public opinion and legislative action, but he also tells us that the justices must examine 'the text or history of the Constitution, or basic political theory about the meaning of representative government'.[14] With regard to the two principles articulated in Buckley, relating to the meaning of the First Amendment, Hasen explains that there was no consensus. His research into the drafting of the case demonstrates that three of the justices (out of eight) had articulated doubts about whether limiting the role of money in electoral contests actually undermines free speech.[15] More important for Hasen is the fact that Congress had actually embraced an egalitarian conception of free speech in the FECA that was utterly different to the conception articulated by the Supreme Court in Buckley. In this circumstance, Hasen observes, the justices should have been willing to hold back, allowing Congress to experiment with a regulative framework in good faith.
A difficulty with this conclusion is that what Hasen sees as a 'contested' value others will regard as settled. Indeed, he quotes (then) Justice Rehnquist saying that people who argue that the FECA 'furthers 1st A[mendment] values argue an absurdity'.[16] Nor is constitutional law merely a matter of value consensus — as Hasen himself notes, there are other sources of law that have traditionally been recognised and have to be taken into account in determining whether a principle is fundamental. Thus, the more conservative justices in Buckley do not argue that their conception of free speech is widely embraced. They claim that it offers a better fit with the legal history of the First Amendment. The fact that Congress prefers a different more egalitarian conception of free speech is irrelevant. After all, the Supreme Court is authorised to interpret the First Amendment. Thus, many conservatives will respond to Hasen by arguing that the Court got it right in Buckley and that the First Amendment allows wealthy people to use their money to convey political messages even if a lot of people, including members of Congress, dislike this.
Hasen's call for judicial reticence sometimes sounds like an echo of the conservative judge and scholar Robert Bork. Yet Hasen is an egalitarian liberal who rejects almost all of the values that Bork articulates. Unlike many other liberals who allow that judges may well need to impose their value judgments, Hasen notices how the Supreme Court has often acted politically to frustrate progressive changes (Buckley is a good example of this). Because he fears judicial activism by conservative judges who do not value equality, Hasen is reluctant to hand-over too much power to the judiciary. He tells us, in this regard, 'I no longer trust the Court to make contested value judgments in political cases',[17] and he explains that this is why he has joined the ranks of a growing number of liberal commentators who have now decided that they would prefer Congress to take responsibility for policy-making.
It is important to note that it is not only the Rehnquist-led conservatives who fall foul of the standards that Hasen endorses. According to him, 'the Court has been wrong in deciding important political equality cases more than half the time'[18] and its record since 1960 is 'mixed at best'.[19] As for the recent decision in Bush v Gore, he describes this as 'disingenuous'.[20]
Even those who think the ideal of judicial reticence is old-fashioned and naïve will find that there is a good deal to learn from this short book. Hasen has established himself as a knowledgeable and astute legal commentator who writes with authority and flare, easily moving between his various roles as journalist, academician and scholar (Hasen edits the web log Election Law and teaches at Loyola Law School, Los Angeles). This new book is a useful contribution to the growing literature on electoral law that will undoubtedly enhance his reputation.
[*] Associate Professor, Department of Political Science, University of Melbourne.
[1] Richard Hasen, The Supreme Court and Election Law: Judging Equality from Baker v Carr to Bush v Gore (2003) 103.
[2] John Ely, Democracy and Distrust: A Theory of Judicial Review (1980).
[3] Hasen, above n 1, 4–6.
[4] Ibid 5.
[5] [1962] USSC 48; 369 US 186 (1962).
[6] Hasen, above n 1, 79.
[7] [2000] USSC 72; 531 US 98 (2000).
[8] Hasen, above n 1, 12.
[9] Ibid 102 (emphasis in original).
[10] [1976] USSC 24; 424 US 1 (1976) ('Buckley').
[11] 2 USC §§ 431–55 (1988).
[12] Buckley [1975] USSC 68; 421 US 1, 48–9 (1976) quoted in Hasen, above n 1, 106.
[13] Hasen, above n 1, 81.
[14] Ibid 79.
[15] Ibid 106–7.
[16] Quoted in ibid 107 (emphasis in original).
[17] Ibid 154.
[18] Ibid 164.
[19] Ibid.
[20] Ibid 9.