Equality, Not Structure
The End of Individual Rights?
The changes I have advocated in the three preceding chapters recognize that courts (and the law professors providing them with unsolicited advice!) do not have particular expertise in the design of political systems or government entities across the United States. But courts remain the government actors of last resort who must referee some high-stakes political battles and protect basic rights of political equality, and the Supreme Court by necessity sets these basic refereeing rules and defines the protective floor.
If the Supreme Court adopted the procedural and substantive changes to political equality jurisprudence of chapters 2, 3, and 4, American election law would change substantially. The Court would show much greater institutional modesty in defining the scope of new equal protection rights, following as much as leading society. In reviewing challenges to existing election laws, the Court would fulfill its primary purpose by protecting core equality principles from government intrusion. In appropriate cases, the Court would balance infringements on individual and group core political equality rights with other government interests, such as the interest in preventing voter confusion. In this careful balancing, the Court would police the problem of legislative self-interest through close means-ends scrutiny. It would not accept claims of voter confusion at face value. The Court also would defer to legislative value judgments about appropriate steps to expand political equality. Again, the Court would use close means-ends scrutiny to distinguish between measures aimed truly at expanding political equality and those measures masquerading as political equality measures enacted simply for legislative self-protection.
As novel as my program is, there are elements that are familiar, even conservative. Calls for judicial modesty or minimalism echo conservative