This article offers a brief sketch of some of Professor Eisgruber\u27s main conclusions, and a few of the key propositions on which they depend. It provides some context for the various responses to Professor Eisgruber\u27s book and his reply

Davis, Joshua P

English

University of San Francisco

SymposiumHow Democratic Is the United StatesSupreme Court?By JOSHUA P. DAVIS*THE MOST COMPELLING writing is often remarkable not so muchfor its apparent complexity or intricacy, but for its deceptive simplic-ity. The author puts forward an idea that may seem obvious, or per-haps obviously right, except that no one else has said it before, or hassaid it in quite the same way. The arguments defending the idea areclear and plainly stated. Only after revisiting the text, with objectionsin mind, does one discover how carefully the author has chosen his orher words, anticipating counterarguments and avoiding pitfalls, yetwithout distracting the reader's attention.Professor Christopher Eisgruber's book, Constitutional Self-Govern-ment,1 is an example of just this sort of compelling writing, as isdemonstrated by the arguments contained in this issue of the Univer-sity of San Francisco Law Review. The essays that follow-by ProfessorsRebecca Brown, John Denvir, Rick Hills, Mark Tushnet, and JeremyWaldron-are themselves clear and perceptive, and provide powerfulchallenges to the argument in Constitutional Self-Government. And Pro-fessor Eisgruber's reply reveals not only the significance and thestrength of his position, but also the degree to which his analysis ad-dresses the concerns of the careful reader. For this reason, as well asbecause of its profound insights, I believe his book will prove to be ofenduring importance and worthy of repeated review.My goal in this introduction is to offer a brief sketch of some ofProfessor Eisgruber's main conclusions, and a few of the key proposi-* Professor, University of San Francisco School of Law. The author would like tothank John Adler, Rhonda Andrews, Jeff Brand, Eric Cramer, Chris Eisgruber, DavidFranklyn, Susan Freiwald, Alice Kaswan, andJosh Rosenberg for the insights and ideas theyprovided for this introduction and the University of San Francisco Constitutional LawSymposium.1. CHRISTOPHER L. EISGRUBER, CONSTITUTIONAL SELF-GOVERNMENT (2001).UNIVERSITY OF SAN FRANCISCO LAW REVIEWtions on which they depend. It provides some context for the variousresponses to Professor Eisgruber's book and his reply.At its most ambitious, Constitutional Self-Government, as the titlesuggests, offers a general theory of how a democracy can and shouldwork in a government framed by a constitution. Professor Eisgruberexplores not only the ways in which a constitution can provide a foun-dation for democracy, but also the realistic limitations a constitutionwill place on later political choices.Perhaps the single most intriguing insight that runs through thebook is that the ways in which a constitution at first appears to con-strain democracy may, in fact, turn out to facilitate democracy. Themost important implication of this insight is also the focus of this issueof the University of San Francisco Law Review. Professor Eisgruber's argu-ment that a robust form of judicial review promotes democracy.2Professor Eisgruber's argument in favor of a form of robust judi-cial review is too careful and involved for me to do it justice in thisshort introduction. And, indeed, I need not undertake that effort.The book itself does that clearly and concisely. Moreover, two authorsin this volume have provided a valuable synopsis of many of ProfessorEisgruber's main contentions. First, Professor Rebecca Brown pro-vides a wonderful account of its general contours, its significance, andits persuasiveness. 3 Further, Professor Eisgruber himself summarizesthe general framework for his argument at the outset of his reply.4Nevertheless, a few words may help to orient the reader.2. The insight has other implications as well. It provides an important response, forexample, to Professor Robert Dahl's recent book, How DEMOCRATIC IS THE AMERICAN CON-STITUTION? (2001). Professor Dahl appears to assume that the difficulty of amending theUnited States Constitution is an impediment to democracy. See id. at 154-55. As ProfessorEisgruber explains, the opposite may be true. In reality, inertia itself makes changes to theConstitution rare. The most important effect of the substantial effort necessary for amend-ments may not be added stability, but rather it may make more obvious to those who draftthe Constitution, and to those who alter it, what would be true in any case: they had betteract with care because the effects of any actions are likely to endure. To put the same pointin a different way, if the formal process for amending the Constitution were less burden-some, its original drafters and those who later revise it might be lulled into a false sensethat it is safe to do so in an effort to win a political battle of only fleeting importance. Acrucial point that ties together this argument and Professor Eisgruber's defense ofjudicialreview is that majoritarianism is not the same as democracy, and restraints on majoritarian-ism may promote democratic self-governance.3. See generally Rebecca L. Brown, A Government For the People, 37 U.S.F. L. REv. 5(2002).4. See generally Christopher L. Eisgruber, Constitutional Self-Government and Judicial Re-view: A Reply to Five Critics, 37 U.S.F. L. REv. 115 (2002).[Vol. 37CONSTITUTIONAL LAW SYMPOSIUMThe main goal of Professor Eisgruber's argument about judicialreview is to facilitate understanding of the practice as promoting de-mocracy. To do this, he must respond to the so-called "counter-majoritarian difficulty."'5 Most critics of American judicial review arguethat it is at odds with democratic self-government. Supreme CourtJus-tices, after all, are not elected, and yet they make value judgments indeciding highly contested political issues. This, the critics say, isundemocratic.Two arguments traditionally have been put forward in favor ofjudicial review. 6 The first posits thatjudicial review is proper only inso-far as it reinforces democracy.7 Under this view, the Supreme Courtshould protect precisely those rights necessary for our democracy tofunction effectively. The perceived flaw in this argument is that it can-not justify many of the rights that the Supreme Court currently pro-tects, and that many people believe the Court should protect. Thesecond argument is that judicial review is necessary to safeguard cer-tain fundamental rights.8 These rights are so important that theyshould be preserved, even if by undemocratic decision-making. 9 Themost obvious vulnerability of this position is that it is, by its own admis-sion, undemocratic. Neither view is able to reconcile democracy withimportant aspects of current Supreme Court practice.Professor Eisgruber offers, if you will, a third way. He claims thatscholars have tended to overlook the conjunction of two points: theextent to which the Justices of the Supreme Court are selectedthrough democratic politics, and the ways in which the SupremeCourt may be particularly well-suited for certain kinds of democraticdecision-making.' 0 To oversimplify his position, it rests on at least twoessential arguments: (1) that majoritarianism, as implementedthrough voting and legislative action, is not necessarily the same asdemocratic decision-making; and (2) that on some issues, promotingdemocracy may be less dependent on decision-maker's connection tomajoritarianism, and may be more dependent on providing a princi-pled analysis that has popular appeal. His conclusion is that the Su-preme Court can be understood as a defensible democratic5. See, e.g., ALEXANDER BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURTAT THE BAR OF POLITICS 16 (1962). Professor Eisgruber also discusses the point. See Eis-GRUBER, supra note 1, at 46-49.6. See EISGRUBER, supra note 1, at 46.7. See id.8. See id. at 46-47.9. See id.10. See id. at 48-49.Fall 2002]UNIVERSITY OF SAN FRANCISCO LAW REVIEWinstitution, with its members appropriately chosen through a politicalprocess and with its design appropriate to render judgments aboutsome of the issues that the people in a democracy would want decidedon a principled basis.Various features of the United States Supreme Court enable theJustices to act on principle. Unlike elected officials, they need notworry about their job security in making a difficult decision, for theyare appointed, in essence, for life. Unlike voters, they have reason toact responsibly because their vote may well decide any given case andbecause others will know how they vote and hold them personally ac-countable. And unlike both elected officials and voters, they must de-fend their decisions with a reasoned analysis. Notably, ProfessorEisgruber does not include in this list that Justices have especiallysound judgment on moral issues. He disavows the elitist view that law-yers orjudges have a particularly refined moral sensibility. Rather, it isthe means through which Justices are selected and the characteristicsof the Supreme Court as an institution that situate them well to makeprincipled decisions on behalf of the people."This sketch of Professor Eisgruber's argument suggests some ba-sic questions: What is the distinction between democracy and majori-tarianism? What characterizes the issues that will be resolved mostdemocratically if they are decided on a principled basis? When is theSupreme Court the institution best suited to perform this function?These are some of the issues that this volume addresses. It offers pro-vocative and engaging reading, particularly for those interested in theintersection of political theory, constitutional law, and judicial review.11. Indeed, the first two points about the Supreme Court support one of the leastelitist features of our judicial system-the role of the jury. Jurors, too, need not worryabout the effect of their decisions on their livelihoods, and their votes are likely to have alarge impact on the outcome of cases.[Vol. 37

How Democratic Is the United States Supreme Court?

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How Democratic Is the United States Supreme Court?

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