ELECTORAL SUPERINTENDENCE
While the justices may, at times, appear âconfused, or indifferent, about what politics is for,â2 as one commentator has suggested, at least since the judicial construction of Baker v. Carr and the spawning of the âReapportionment Revolutionâ in the early 1960s,3 the U.S. Supreme Court has assumed the role of electoral superintendent, a development that has consistently and increasingly involved the justices in the regulation of politics. Indeed, as election law scholars have stressed, judicial oversight has increased to a degree âunimaginable when the Supreme Court first entered the political thicketâ in Baker.4 Before proceeding further then, a brief recap of the road leading here is appropriate. While the first three of the White Primary Cases (Nixon v. Herndon in 1927, Nixon v. Condon in 1932, and Grovey v. Townsend in 1935)5 are probably the most well known of the Courtâs early twentieth-century interventions in the political process, what is in effect the theoryâor a theoryâfor why the justices would superintend in such a fashion was not articulated as such until 1938, in United States v. Carolene Products Co.6
Sweet Carolene
Announcing a routine-enough assertion of the deference to be paid to legislation having a rational relationship to a professed concern for the health and well-being of the public and its markets, Carolene is, of course, most known for the significance of its fourth footnote: a signal, if you will, of the heightened scrutiny to be paid to particular, noncommercial, classes of legislation. As Chief Justice Harlan Fiske Stone suggested in this forecast, the operative scope for the presumption of constitutionality may be ânarrowerâ when âlegislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.â7
Following the Carolene invitation over the course of the next generation, the Court, in United States v. Classic,8 Smith v. Allwright,9 and Terry v. Adams,10 appeared to demonstrate its intention to âunclogâ the âchannels of political change,â as John Hart Ely put itâacting as a sort of ârefereeâ for the political process.11 Election law scholars such as Samuel Issacharoff and Richard Pildes, informed by Elyâs work and looking to the White Primary Cases for evidence of prototypical problems, have applauded this mode for the Court and theorized that the justices should adopt a âstructuralâ or âfunctionalâ approach to guide their review of political process cases,12 intervening âonly when the âmarket,ââ (in their case, the âpolitical marketâ) was âsystematically malfunctioningââthat is, essentially when the process is undeserving of trust because âthe ins are choking off the channels of political change to ensure that they will stay in and the outs will stay out,â13 as Ely put it.
What this emphasis on âstructureâ or âfunctionâ would do for practical purposes, Issacharoff and Pildes contend, would be to present democratic politics as akin to a ârobustly competitive market,â whose âvitality depends on both clear rules of engagement and on the ritual cleansing born of competition.â14 Only within a system of competitive party politics, in other words, can the âpolicy outcomes of the political process be responsive to the interests and views of citizens,â and thus they advocate a âtheory of legal regulation of politics premised on a skeptical view of political lockups, akin to the âhard lookâ given to managerial self-protection in the corporate setting.â15
Critics of this approach, such as Richard Hasen, find it to be a âshallow theoryâ that âsays nothing about how the courts should intervene in the face of political market failure.â 16 For Hasen, the Court should focus instead on substantive equality principles, working to distinguish between âcore political equality rights,â such as not discriminating against individuals on the basis of race, and âcontested political equality rights,â such as the right espoused by some that minorities should have the right to generally proportional representation in legislatures, for example. Hasen admits that âmost core rights are socially constructed,â meaning that they are the product of social consensus, but his recommendation is that when the Court intervenes regarding contested political equality rights, it should craft a âmurky (or vague) political rule,â whereas intervention in cases implicating core political equality rights calls for the use of âbright-line rules.â 17 But he contends that this more articulate focus clarifies âfor both members of the Court and the public at large what normative value judgments the Court is making,â meaning, too, that âthe Court is more likely to consider whether the caseâs holding might have unintended consequences on other political issues,â an approach he finds to be âmore honest than a focus on process, because the Court will not always provide process protection absent a threat to a substantive equality principle recognized by a Court majority.â18
âPlatonic Guardianshipâ
But critics of interventionâfor any reason and however cabined by theoretical partitionsâcontend that such authority vested in the Court necessarily envisions the justices as âPlatonic Guardiansâ summoned for their wisdom in the arrangements of political life and operations.19 Beyond this sort of normative resistance, howeverârooted as it typically is in the perception that the Courtâs involvement is somehow un- or antidemocraticâa separate argument for resisting the lure of Carolene would point to the various and prominent examples of electoral reform that successfully emerged without courts (i.e., through the political process), such as the institution of the Australian âsecret ballotâ system; the direct primary; the direct election of senators; various campaign finance regulations; term limits; and the extension of the franchise to blacks, women, those over age eighteen, and recently, in some states, to ex-felons who have completed their sentencesâa class which has actually been stymied in its efforts to regain voting rights through the courts,20 and which has, instead, relied on unequivocal public support for the eventual return of the franchise in the course of political mobilization campaigns, grassroots lobbying of state legislatures, and appeals to state executives .21
But the concept of electoral superintendence invites us as well to consider the theoretical implications and consequences of the phenomenon that Richard Pildes has recently referred to as the âconstitutionalization of democratic politicsâ22âor the tendency over the last generation for âissues concerning the design of democratic institutions and the central processes of democracyâ to âincreasingly become questions of constitutional law throughout the world.â23 Regarding this âconstitutionalization,â Pildes explains that âthe contours of fair political representation and political equality,â the constitution of âgroup identities in the design of democratic institutions,â and the campaign voices and political participation of corporations, interest groups, unions, and parties, âare now substantially constrained by constitutional law.â24 Indeed, even in the rejection of particular claims, he continues, âconstitutional law has been credibly invoked and has generated divided Court decisions over other central aspects of elections, governance, and politics,â such as the ârole of third parties in American politics, the place of write-in candidacies, the structure of campaign debates, and the role of partisanship in the design of election districts.â25
Thus, with the âstakes for the practice of democracy, and the role of constitutional lawâ as âdramaticâ as they are,26 and with âhardly any issue concerning the institutions of governance or the conduct of elections . . . outside the reach of contemporary constitutional law,â27 Pildes contends that in the coming years, constitutional law will be âshaped, in part, by the collision of these two developments: a Supreme Court increasingly constitutionalizing the structures of democracy, and political circumstances that spawn recurring challenges to existing democratic structures.â28 In this context then, the Supreme Court âremains well entrenched in the political thicket and is likely to remain there.â29
As we will see in the next section, a concept of equal constituent significance has evolved within the Courtâs free speech jurisprudence. While more of an interpretive device than a historical trend or tendency, the âmarketplace of ideasâ warrants attention in understanding the constitution of this domain because it presents the framework, or design, which effectively absorbs and animates the characteristics drawn from the âsuperintendentâ construct. Next we will review the marketplace concept in terms of its development, doctrinal establishment, discontents, and ultimate dominion in free speech law.