Liberty Before Party: The Courts as Transpartisan Defenders of Freedom
Abstract
Like many legislative acts in the United States, election laws are subject to judicial review, often by unelected judges with life tenure. This precipitates what Jacob Eisler calls the counterpopular dilemma. If the laws governing self-rule are dictated by courts which are unaccountable to the people–in the case of Article III judges, by design–they intrude upon democratic autonomy. But without arbiters who are resistant to popular pressure, elections can end up facilitating a mob rule or a tyranny in democratic clothing by enabling elites to manipulate democratic procedures for their own political gain. How, then, can judicial review of elections be reconciled with democratic self-government?
Eisler’s book, The Law of Freedom: The Supreme Court and Democracy, provides a novel understanding of, and solution to, the countermajoritarian dilemma: how can judicial review of election laws be reconciled with democratic self-government? According to Eisler, the counterpopular dilemma “is intractable” if the judicial role in elections is understood in conventional terms: “uniquely positioned outside typical political struggles, and thus especially well-suited to guarantee fair elections.” Instead of limiting freedom, courts should be viewed as advancing freedom, in two conflicting forms. The egalitarian view of freedom “seeks to afford all constituents equal opportunity to freely participate in self-rule.” Thus, the egalitarian view “demands some ‘levelling’ of inequities” that influence elections by, for example, limiting campaign spending. The libertarian view “prioritizes protecting individuals from state intrusion.” Thus, the libertarian view is that “state regulation of campaign finance . . . interfere[s] with personal liberty.” By casting the Supreme Court’s election law jurisprudence as a debate over how best to advance constituent freedom, Eisler provides a much-needed understanding of the Court as an institution in service of a common good—at a time when voters see it as motivated by political expediency, and rising public contempt is becoming an existential threat to judicial authority. I argue that, for Eisler’s theoretically illuminating perspective to become an operationally useful framework for delineating the courts’ role in elections, it must provide an objectively discernible standard for what constitutes a “minimal,” and thus tolerable, counterpopular intrusion into electoral design.
