Academic journal article Law and Contemporary Problems

Neoliberal Political Law

Academic journal article Law and Contemporary Problems

Neoliberal Political Law

Article excerpt


In the last twenty-five years, the Supreme Court has struck down all limits on campaign expenditures, some limits on campaign contributions, state experiments in open primaries, and the central feature of the Voting Rights Act. The decisions have not been popular, and, in many cases, the reasoning has been quite inventive and has veered away from precedent. The question behind this article is whether there is an underlying ideology connecting these decisions.

One possibility is that these cases are simply a function of rigorous application of doctrinal commitments. The Justices who led the charge on these cases might believe, as an outgrowth of their theories of constitutional adjudication, in a fairly absolute First Amendment and a rigorous Tenth Amendment. Accordingly, it might be that the centerpiece of the Voting Rights Act and the centerpiece of the campaign-finance laws had to be sacrificed because of intellectual integrity. Alternatively, one might read this history through a cynical lens adopted by some Court critics: The Court is simply exercising raw power. If you take this view, there is no "Roberts Court"; there is something more like a "Kennedy-Roberts alliance" made up of five partisan Justices (Roberts, Kennedy, Alito, Scalia, and Thomas) who use their power to benefit those whom they perceive to be on their team. In this version of recent history, the Kennedy-Roberts alliance think the Voting Rights Act hurt Republicans, so they used invented doctrine to strike it down; they think that fewer restrictions on corporate speech cause Democrats to lose at the polls, so they have struck down corporate expenditure rules. Another, related possibility is that the members of the Kennedy-Roberts alliance are driven by racial, ethnic, or class concerns. The "us" and "them" within the Court are not political teams, but factional ones.

A third possibility is that the Justices are neither doctrinal nor partisan nor group-defending, but driven by an ideology--by something like neoliberalism. In this possibility, the Justices have used their power to build a political society around general principles of politics, persons, and government with which they align. The members of the Court have a background set of political philosophies about government itself that drive these decisions.

If this possibility is the best explanation--or even part of the explanation--then the task here is to explain that ideology. What do recent election-law cases suggest about the way government and politics should work? Do Justices Roberts, Kennedy, and Alito believe that democracy is a good way to improve the moral character of citizens, to increase the flow of information to decisionmakers, and to lead to greater peace and stability? Do they believe that power should be primarily allocated to the public, or is the public a check on the exercise of the power of elites? Do they have a theory of power?

This investigation cannot help but be a form of ideological palace intrigue focused on the head of the Court: "What does Justice Roberts really think about democracy and his own role in it?" The texts are few, and the writers are even fewer--just a dozen men and women over the last twenty-five years have struck down laws supported by a broad majority of Americans. (1) I regret that imbalance. I find nothing particularly interesting about the minds or theories of these men and women, except inasmuch as those with power are always interesting. But if these dozen men and women are aggressively changing the rules of the American polity, it is worth exploring what they think government should look like. Furthermore, they are not men or women outside of their time, but part of it, and symptoms--as well as causes---of contemporary ideology.

This article, besides being royalist in its focus, is also speculative. One of the more prominent features of the Kennedy-Roberts alliance election-law opinions is how short, ahistorical, and formal they are. …

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