The Ghost of John Hart Ely

Abstract

The ghost of John Hart Ely haunts the American liberal constitutional imagination. Despite the failure long ago of any progressive constitutional vision in an increasingly conservative Supreme Court, Ely's conjectures about the superiority of judges relative to legislatures in the protection of minorities and the policing of the democratic process remain second nature. Indeed, they have been credible enough among liberals to underwrite an anxious or even hostile attitude toward judicial reform. In order to exorcise Ely's ghost and lay it to rest, this Article challenges his twin conjectures. First, the Article argues that there is little historical and no theoretical basis for the belief that courts will outperform legislatures in overcoming deeply entrenched historic discrimination against deserving minorities--even as courts act to entrench the power of undeserving ones, like the powerful and wealthy, today. Second, the Article contends that Ely's almost complete failure to anticipate the inaction of the judiciary in policing the democratic process--except when judges assist their own ideological allies--is devastating for his theory, which depended precisely upon an empirical prediction. Ely's conjecture about the comparative superiority of judges in policing the democratic process has proved untrue because he ignored ideological affiliation (focusing exclusively on personal self-interest) in supposing that, with their independence and life tenure, judges are less likely to act in self-dealing fashion than politicians. And the deepest reason for the ideological affiliation of judges, who often exacerbate what many take to be the worst pathologies of democratic exclusion, is that identifying what arrangements count as more rather than less democratic is itself a matter of intense ideological division. If Ely's two conjectures fail, nothing remains to support the conclusion that judges deserve excess countermajoritarian power, leaving democracy's shortcomings to be remedied within democratic politics--which is, in turn, the most desirable future of liberal constitutionalism.