Rethinking Political Power in Judicial Review

For decades, scholars have argued that the proper judicial response when democratically enacted laws burden politically powerless minority groups is more aggressive judicial review. This political process approach, however, has fallen on deaf ears at the Supreme Court since the 1970s. Justice Scalia was thus accurate (if not politic) when he derided political process theory as an “old saw” of constitutional law. There is a different role that political power may yet play. The key to seeing it is to focus on the other side of the political power spectrum. Courts can be attentive to situations when the groups burdened by a law are politically powerful, not just when they are powerless. Political power’s presence, I want to suggest, can be a good reason for judges to defer to democratically enacted laws, even if one thinks its absence is a bad reason to strike laws down. This Article advances a positive and normative case for an approach to judicial review that is attuned to political power. As a positive matter, it turns out the Supreme Court has employed such an approach in a number of decisions, including in opinions joined by seven of the nine current Justices. And as a normative matter, treating political power as a reason for judicial deference may help unlock the democratic and institutional benefits of leaving contested constitutional questions to the political branches without sacrificing the role of courts in safeguarding individual rights. The Article concludes by applying these insights to five contemporary disputes in constitutional law: the rise of First Amendment Lochnerism, gun control and the Second Amendment, same sex marriage, due process limits on punitive damage awards, and the closely-regulated industries exception to the Fourth Amendment warrant requirement.