Hey, courts: What about political power?

If there is one mainstay in equal protection doctrine as it has been taught to law students over the past several decades, it is the idea that certain groups -- suspect classes, in the legal jargon -- should be entitled to special constitutional protection on account of their lack of political power. When elected officials enact laws burdening these groups, the rule goes, the laws must surmount heightened scrutiny. Many groups, from the poor, to persons with disabilities, to gays and lesbians in more recent litigation, have sought such treatment from the U.S. Supreme Court.

It's been more than 40 years since the court has recognized a new suspect class, however. And in light of the court's conservative composition, it seems unlikely that any new group will soon receive special constitutional solicitude on account of its lack of influence in the political process. The passage of time has turned this once vital prong of political process theory -- that famous theory of judicial review associated with John Hart Ely and Footnote 4 of Carolene Products -- into a relic of constitutional law from days gone by.

But should we be so quick to discard all reference to political power in judicial review? One view of judging once held prominently among conservative jurists was that courts should exercise restraint in the sense of deferring to democratically enacted laws. That posture of deference, I argue in a forthcoming article in the California Law Review, is particularly warranted when the laws being challenged burden politically influential groups.

Why should judges display a distinctive degree of trust to laws that burden powerful groups? For at least three reasons. First, virtually everyone in America agrees that there is something valuable about our democratic system, wherein laws are made with the consent of the governed. Of course, there may be reason to worry about our democracy when it consistently prejudices discrete and insular minority groups. But at a minimum, we can be confident that our democracy is functioning smoothly when lawmakers pass laws that burden powerful groups who usually prevail in that process. When lawmakers hear from lobbyists representing those powerful groups -- like corporate America or the NRA -- and yet choose to pass laws against their interests nonetheless, there is little reason for judges to intervene on those groups' behalf using abstract provisions of the Constitution.

Take gun control as an example. If there is one thing that years' worth of debate about the meaning of the Second Amendment makes clear, it's that there are two plausible interpretations of the text: one that guarantees an individual right to bear arms, and one that simply guarantees the collective right for purposes of a militia. Faced with conflicting evidence over the original public meaning of the Second Amendment, the Supreme Court ruled in favor of the individual rights view in D.C. v. Heller. In doing so, however, the court forever removed an issue from the political debate, disempowering the people from having a dialogue about the wisdom of laws forbidding residential handgun ownership. Given that the group burdened by such laws -- the gun lobby, spearheaded by the NRA -- holds undeniable political sway, it would have been far wiser for the justices to leave this difficult constitutional issue up to the fully functional democratic process.

There's a second reason courts should be more trusting of laws that burden powerful groups. Legislatures possess a unique advantage over judges when it comes to making difficult judgment calls about the contested constitutional rights of powerful groups. Legislatures, after all, interact with and are responsive to their constituents as a matter of their basic job duties; judges are more cloistered. And legislatures are most responsive to groups with the means to lobby and make campaign contributions -- in other words, the politically powerful. What is more, when lawmakers consider legislation that would burden powerful groups, those groups have ample resources to invest in research to try and persuade people to their views. Far better, in other words, to leave underdetermined constitutional questions to the lawmakers who interact with these adversely affected groups and who can comb through their empirical arguments than to vest them in unelected judges.

Finally, we should be wary of judicial intervention to rescue powerful groups from their political defeats for the simple reason that it undermines public confidence in our courts. As a historical matter, two of the lowest points in the public's esteem for the Supreme Court were after the court struck down New Deal laws aimed at protecting workers during the so-called Lochner era, and after the court's invalidation of the Missouri Compromise in Dred Scott. It is not a coincidence that both sets of rulings involved the Supreme Court saving politically powerful groups -- major industries and slaveholders -- from legislative defeat. One might add to the list the more recent Citizens United decision invalidating limitations on corporate campaign expenditures out of general treasury funds. The lesson is this: when the people are able to organize to pursue their broader interests over those of powerful special interests, the court upsets that balance at great risk to its own legitimacy.

It is not too late in the day for the Supreme Court to adopt this view of political power, which would treat the presence of power on the part of burdened groups as a reason for greater deference. Doing so would not always align with some of the conservative Justices' preferred policy views. But it would fit nicely with another common conservative talking point: the call for judicial restraint.

This essay was adapted from his forthcoming California Law Review Article, "Rethinking Political Power in Judicial Review."