The First Consideration
Today’s gun-rights decision raises a question court-reform debates rarely formulate: by what criteria should we judge when the Court is right to overturn legislation? Political equality is one.
The Supreme Court this morning struck down Hawaii’s law on guns in publicly-accessible private property. Hawaii had set the default at no carry without affirmative permission from the owner. The Court ruled the Second Amendment requires the opposite — armed carry is the presumption, and the property owner has to post a notice excluding it if she wants to keep firearms out of her store. One way to describe the holding is that gun rights, on the Court’s reading of the Second Amendment, run ahead of the property right to set the terms on which strangers enter the premises.
Reasonable observers will disagree about whether the Court got the case right, and I’m not going to argue for or against the decision here. What interests me is the prior question, the one that comes up in just about every case where the Court overrules a duly-enacted statute. The Court took a legislative judgment about how to weigh competing interests — gun owners, property owners, public safety, the conditions of ordinary commercial life — and put its own balance in place of the legislature’s. By what standard do we evaluate moves like that?
The standard you bring to the question does a lot of work. It tells you which judicial decisions count as usurpations and which as exercises of constitutional responsibility. It shapes what we even mean by “court reform” — a debate about restraining a Court that has grown too aggressive, or a debate about making it respond more reliably to whichever coalition is currently demanding its services. And the standard is usually unstated. People argue about court-packing and term limits as if these were structural disagreements; what they’re really arguing about is a particular set of substantive judicial outcomes. The structural argument needs the standard, even when it doesn’t admit it.
The standard I want to develop across this series, and begin to defend here, is political equality. It is not a new criterion. The argument that judicial review is best justified where it preserves the conditions of democratic politics — rather than where it substitutes for them — has a long pedigree in American constitutional thought. Alexander Bickel laid out the basic puzzle in The Least Dangerous Branch in 1962: what is judicial review doing in a democracy at all? John Hart Ely’s Democracy and Distrust, twenty years later, gave the most influential answer from inside the political-equality tradition: courts should reinforce the representative process when it fails, and stay out of substantively evaluating its outputs when it’s working. The criterion I want to develop here is in that lineage. It also goes further than Ely’s process-based account, in ways the next section will spell out — and it has to be combined with a second consideration, institutional competence, that the next post will introduce.
Thin equality is not enough
There is a thin version of political equality and a thicker one. The thin version is the one most familiar from American constitutional law: equal voting weight, equal speech and association rights, formally equal access to civic participation. It is necessary. It is also nowhere near enough. A vote weighs the same on paper whether or not the voter has access to information, organizational capacity, the time and resources to participate, or the personal security to participate freely. Equal access to a ballot is not equal influence over the outcome of an election. Equal speech rights are not equal political voice when the political marketplace systematically privileges some voices over others.
The thicker version asks for more. It cares about influence over political outcomes, not just access to political processes — a democracy where citizens have equal access but radically unequal influence is not realizing what we mean when we use the language of equal citizenship. And it presupposes the personal-freedom protections — freedom from arbitrary detention, equal treatment under law, freedom from state-sanctioned discrimination, equal civic standing — without which equal political influence is impossible to exercise in practice. A citizen whose civic standing is contingent on the indulgence of the state cannot participate as an equal in political life, no matter what the ballot looks like.
The thicker version is what the American constitutional tradition has actually argued about, even where the language has been other. The lineage runs from the Declaration through the abolitionist constitutionalism that produced the Reconstruction Amendments, through the suffragists, into the modern civil rights tradition. The moral language of the country has consistently been the language of equal civic standing, not equal procedural access. The Civil War, the Voting Rights Act, the Civil Rights Act, the long fight over the franchise — these were arguments about what it takes for citizens to count as equals in the political life of the country. Ely’s version of the criterion captures part of this, but only the procedural part. The rest of the tradition — the part the loud reform debate has mostly forgotten — is in the thick version.
Restraint and obligation
Political equality has an unusual property as a criterion for judicial review. It gives the Court a reason to do less of what it ordinarily does. It also gives the Court a reason to do more of what it rarely does. The same value cuts in both directions.
Start with the reason for restraint. Outcomes produced by politically-equal processes carry a presumptive legitimacy that judicial substitution erodes, even when the substitution is in the service of substantively desirable ends. A court that overturns a duly-enacted statute on policy grounds — because the judges think the policy is unwise, or imprudent, or contrary to a preferred social vision — is replacing the considered judgment of citizens with the judgment of a small body of unelected officials. Political equality says this is generally not the Court’s call to make. Reasonable people will balance competing interests differently, and the balance is properly struck by the institution accountable to the public for the choice.
Now the reason for protective action. When the political process produces outcomes that degrade the conditions of political equality — when a legislative majority redraws maps to entrench its position, when a state strips voting access from disfavored constituencies, when the political system is being rigged from the inside — the mechanism that gives ordinary democratic outcomes their legitimacy is precisely the casualty. Majorities cannot reliably police the conditions of their own equal standing with the minorities they govern, because the majority is itself the threat. A court that intervenes to protect those conditions is not substituting for democracy. It’s preserving the conditions under which democracy continues to be possible.
Both cases — for restraint and for protection — come from the same place. The Court should pull back when it’s doing substantive policy and step forward when democracy is at stake. The convenient feature of political equality as a criterion is that you don’t need a second principle to get this result. The cuts are internal to the same value. It’s Bickel’s restraint and Ely’s protection, but coming from one foundation rather than two.
The criterion in today’s case
Now apply the lens to this morning’s decision, with the caveat that I’m not trying to settle whether the Court was right. Hawaii’s legislature, doing what state legislatures have always done in this area, made a particular judgment about how to balance the right of a firearm owner to carry against the right of a property owner to set the terms on which strangers come onto the premises. The judgment was that the default would run in favor of the property owner; an armed visitor needed affirmative consent. The Court has now reversed that default.
The criterion asks a particular question of the case. Is the Court, in this decision, protecting an excluded minority from a majoritarian failure? Is it policing the conditions of political equality? Or is it doing substantive constitutional law of the kind the criterion treats as the harder case to justify? Different people will give different answers, and the criterion doesn’t decide between them. What it does is move the argument to the right ground. It tells you what the Court has to be doing to count as doing its job, rather than as exceeding it.
That’s the analytical move the criterion makes available. It doesn’t give you a verdict on this morning’s decision. It gives you the question that has to be answered before any verdict on this morning’s decision can be defended.
Calibrating the cut
If political equality is the criterion, the question for any specific reform is whether it sharpens this cut or blurs it.
The reforms on the loud edge of the debate mostly blur it. A blanket supermajority requirement to invalidate federal statutes makes it mechanically harder for the Court to strike down both economic regulation and voter-suppression laws — same threshold, both sides. A congressional override mechanism lets the legislative majority that drew a partisan gerrymander undo the Court’s attempt to police it. A broad jurisdictional strip removes substantive review and protective review together. Each of these constrains the Court in ways that degrade what we need it to do, in the service of constraining what we want it to stop doing.
The reforms calibrated to the right cut look different. Eighteen-year staggered term limits, for example, lower the political stakes of being on the Court without changing what the Court does. They make substantive-policy substitution harder while leaving protective interventions in place. Other measures condition the Court’s deference to the elected branches on the quality of those branches’ work, so that the legislature is rewarded for doing its job and the Court is constrained when the legislature has done so. None of these reforms is on the loud edge of the debate, and that’s part of the diagnostic. The loud edge is occupied by proposals that fail the criterion on both sides at once.
Reforms that take the criterion seriously can operate at three different points. Who sits on the Court — lower political stakes attract appointees less captured by the demand for outcome reliability. What the Court decides — the discretionary docket can be reorganized so that more protective questions percolate up and fewer substantive-policy ones do. And how the Court decides — judicial factfinding can be conditioned on the kind of legislative record only the elected branches can produce, so that deference becomes a function of legislative seriousness rather than a default rule.
None of this is new. Bickel and Ely were arguing about it before the contemporary reform debate’s loudest voices were born; we have just lost track of them. The next several posts try to put the pieces back together.