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March 27, 2017

Reverse Political Process Theory

This post is about an article entitled Reverse Political Process Theory, which will appear in the Vanderbilt Law Review (forthcoming 2017).

The article is the first of two papers to take up an intriguing phenomenon at the Supreme Court: the Court's recent practice of granting what seems to be special, heightened constitutional protections to politically powerful entities. 

This observation may strike some as counter-intuitive.  After all, when one thinks of political power in constitutional law, the reflexive move is to consider Footnote 4 of Carolene Products and John Hart Ely's political process theory, under which politically powerless discrete and insular minority groups are to receive special constitutional solicitude.  But the reality is that the Supreme Court has long since stopped interpreting the Constitution to afford special protection to certain groups on the ground that they are powerless to defend their own interests in the political process. One need only consider as evidence the series of decisions in the late 1970s and 1980s reviewing laws that burden whites under the same strict scrutiny as laws that burden racial minorities, or the Court's more recent decision in Obergefell v. Hodges upholding the right to same-sex marriage based primarily on the fundamental nature of marriage, rather than the political status of gays and lesbians.

I argue in the Article that the Court has gone further than to merely reject the notion that powerless discrete and insular minority groups alone should be entitled to heightened judicial solicitude. In multiple doctrinal areas, the Court has reversed the theory's core prescription by conferring extra constitutional safeguards upon entities that, by any fair accounting, possess an outsized ability to protect their interests through the ordinary democratic process-all the while withholding similar protections from less powerful counterparts.  For example, the Supreme Court has recently granted large corporations a special defense against general personal jurisdiction under the Due Process Clause, allowing powerful, multi-national businesses to evade suit in U.S. forums despite having far more extensive contacts there than small business and individual defendants.  Similarly, the Court has afforded sovereign defendants a far more generous rule when it comes to interpreting waivers of their rights than it has with respect to waivers of rights possessed by (often indigent) criminal defendants.

After identifying these doctrinal developments, the Article offers an evaluation of the Court's long and tumultuous relationship with political process theory. I conclude that even if one opposes the idea of granting heightened constitutional protections to the powerless-perhaps because one believes judges cannot avoid substantive value judgments when deciding which groups are so weak as to warrant extraordinary protection from the democratic bazaar-attention to the political process should still require judges to stay their hand before granting special constitutional treatment to entities that are powerful enough to look out for themselves.