Democracy and Disdain

Abstract

THE SUPREME COURT 2011 TERM FOREWORD: DEMOCRACY AND DISDAIN Pamela S. Karlan CONTENTS I. THE VERY WORLD OF ALL OF US: THE REVOLUTION OF THE WARREN COURT A.Democracy and Electoral Process. B.Trusting Congress C.The Democratization of Constitutional Enforcement. II. AS ON A DARKLING PLAIN: THE COUNTERREVOLUTION OF THE ROBERTS COURT A.Protecting Spenders and Suspecting Voters: The Roberts and Political Process. B. Suspecting Congress C.Undermining Enforcement III. SHINE, PERISHING REPUBLIC. Sometimes Justices seem barely able hide their disdain for other branches of government. Take oral argument three Terms ago in Northwest Austin Municipal Utility District No. One v. Holder. Justice Scalia pointed overwhelming congressional vote in favor of amending and extending section 5 of Voting Rights Act of 1965--the crown jewel of Second Reconstruction--as reason not for deference, but for suspicion: JUSTICE SCALIA: ... What was vote on this 2006 extension --98 nothing in Senate, and what was it in House? Was -- MR. ADEGBILE: was--it was 33 390, I believe. JUSTICE SCALIA: 33 390. You know, the--the Israeli Supreme Court, Sanhedrin, used rule that if death penalty was pronounced unanimously, it was invalid, because there must be something wrong there. (1) In this Term's argument in Arizona v. United States, (2) an important immigration case, Chief Justice Roberts cut off Solicitor General Donald B. Verrilli Jr. before Verrilli was able utter complete sentence. (3) And during argument in National Federation of Independent Business v. Sebelius (4) (NFIB), Justice Kennedy speculated that when political branches take step beyond what Court's existing cases have allowed, presumption of constitutionality disappears, be replaced by a heavy burden of justification show authorization under Constitution. (5) The Justices are becoming umpires in tradition of Bill Klem, who when asked whether particular pitch was ball or strike, replied that It ain't nothin' till I call it. (6) was not always so. The opening day of marathon oral argument in Affordable Care Act (7) cases--surely defining decision for Roberts so far--happened be fiftieth anniversary of what Chief Justice Warren called the most important case of his tenure on Court (8): Baker v. Carr. (9) Why Baker, and not Brown v. Board of Education (10) or Miranda (11) or Gideon (12) or New York Times Co. v. Sullivan? (13) Well, because Baker set in motion reapportionment revolution--a centerpiece of Warren Court's participation-oriented, representation-reinforcing approach judicial review. (14) The animating impulse behind many of Warren Court's major decisions was commitment civic inclusion and democratic decisionmaking. This impulse is captured not only by Reapportionment Cases themselves, where focused on equality in voting and problems of minority entrenchment, (15) but also by way tied public education civic participation in Brown (16)and treated landmark legislation of Second Reconstruction as an important tool in realizing constitutional values. (17) The Warren understood problems and promises of politics from its own experience. The numbered among its members former senators, representatives, and state legislators, former governor and former mayor, and former cabinet members. (18) Earl Warren himself was politician of kind we can scarcely imagine today. Elected Governor of California as Republican in 1942, (19) he proposed that California become first state to create and support system of compulsory health insurance. (20) Although proposal was defeated by one vote in Assembly, (21) his health care agenda, among other things, garnered Warren such widespread admiration that when he ran for reelection in 1946, he won both Republican and Democratic primaries. …

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