After the sad distraction of the repressive “Québec Values Charter” on which I spent the last week, it is time to return to my more customary business of constitutional law and theory. It will no doubt be very bad for the blog’s traffic, but very good for my mood. There is a good occasion for me to return to constitutional theory too, in the shape of this piece by Lincoln Caplan in the New Yorker. Mr. Caplan writes about the significance of what has “long been called the most important footnote in [U.S.] constitutional law” ― footnote four of the U.S. Supreme Court’s decision in United States v. Carolene Products, 304 U.S. 144 (1938).
In that footnote, Justice Stone (as he then was) articulated a theory of what might be described as modulated judicial review. In some cases ― notably those involving economic regulation ― Courts ought to defer to legislative judgment about its constitutionality. In others ― those involving rights ― judicial review should not be deferential. Justice Stone also suggested (albeit prefacing his suggestion by saying that it was “not necessary to consider [it] now,” a caveat which Mr. Caplan ignores, which does not strike me as great journalism), that “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation,” as well as “statutes directed at … discrete and insular minorities” might also have to be approached with less deference than would otherwise be warranted.
As Mr. Caplan explains, these suggestions have been very influential in American constitutional thought, that of judges as well as of academics. Other theories of modulated judicial review, notably that elaborated by John Hart Ely in his classic Democracy and Distrust, which argued that judicial review should serve only to ensure the good functioning of the democratic process, built on it. A distinction between issues from which the courts would stay away, leaving them entirely to be settled by the political process, and those in which they could intervene, basically because the political process could not be relied on to function properly in these limited areas, promised to reconcile the undemocratic practice of judicial review of legislation with democratic ideals ― which is about as close as constitutional theory has to a holy grail.
Now, however, argues Mr. Caplan, the theory of judicial review developed in the Carolene Products footnote four and its progeny is being abandoned:
[w]atershed rulings of the Roberts Court, in particular, run flatly counter to footnote four: the Court has struck down voluntary school-integration plans, major campaign-finance regulations, and a critical provision of the Voting Rights Act, for example, in each case undermining rather than enhancing American democracy.
And with the logic of that footnote, gone is any justification of the legitimacy of what the U.S. Supreme Court is doing.
In past posts, I have myself suggested, very tentatively, something like a modulated approach to judicial review. Here, for instance, I wrote that
[i]t is one thing for courts resist attempts by legislatures or the executive to expand their coercive powers, or when politicians distort the democratic process in order to entrench themselves in power. It is something else for courts to intervene when legislatures try to strike a balance between the interests of different groups of citizens.
I have also said that courts might do well to be more deferential to legislatures on issues that were well-debated in the legislative process, as opposed to those which were unforeseen or ignored. However, as I also suggested here, to elaborate a sophisticated and workable theory of modulated judicial review will not be easy.
Mr. Caplan’s criticism of the recent decisions of the U.S. Supreme Court illustrates some of the difficulties which such theories must face. It is very difficult to agree not only on the on the categories of issues that warrant deferential judicial review, but also on which cases fall within each such category. And, since constitutional theory is inevitably shot through with politics (as I have argued here), it is difficult to resist the temptation to fiddle with these categories in order to suit one’s political agenda.
Thus, Mr. Caplan cites the invalidation of campaign-finance regulations as evidence of the abandonment of Carolene Products footnote four, but it actually fits not one, but two categories of cases listed in that footnote: the “specific prohibition of the Constitution” on laws “abridging the freedom of speech,” and also Justice Stone’s worry about legislation restricting the democratic process. Now Mr. Caplan probably thinks, and it is certainly arguable, that the regulations recently struck down by the U.S. Supreme Court did not infringe the First Amendment or otherwise impede the political process. But that is a view as to what the ultimate outcome of judicial scrutiny of these regulations ought to have been. One should recognize, I think, that campaign-finance regulation at least has the potential for restricting freedom of speech and impeding the democratic process, so that, on Mr. Caplan’s preferred theory of modulated judicial review, courts were fully justified not to defer to legislative judgments as to its constitutionality.
Or consider the case of affirmative action. Mr. Caplan begins his article by noting that Justice Ginsburg of the U.S. Supreme Court thinks that her colleagues’ newfound willingness to scrutinize it is evidence of their abandonment of Carolene Products footnote four. Affirmative action, after all, involves a majority conceding special advantages to minorities ― nothing wrong with that on the footnote’s logic. It’s when minorities are singled out for special burdens that we should worry. But is that so? Some people disadvantaged by affirmative action are themselves members of minority groups (notably Asian-Americans), minority groups that are smaller, though less disadvantaged, than those whom affirmative action benefits. It may well be the case that it is they who have trouble making their voice heard in the political process, thus justifying stricter judicial scrutiny of that process’s output. Furthermore, considered as individuals, the few people who actually lose out as a result of affirmative action programmes (i.e. those marginal applicants who would have got into the university or programme of their choice but for affirmative action preferences) are, arguably, a minority in their own right, even though they belong to an ethnic or cultural majority group. Carolene Products footnote four might protect them, after all.
All this is not to say that the U.S. Supreme Court’s rulings on these matters are right (or wrong). U.S. Constitutional law is, generally, not my concern here. My point is simply that applying a the Carolene Products footnote four version of a modulated theory of judicial review is very difficult. Further, I’m inclined to think that that’s not because it’s a particularly bad theory, though I don’t necessarily fully agree with it either. Rather, I suspect that similar difficulties are likely to arise in applying any modulated theory of judicial review. I still think that such theories might be an attractive response to wholesale criticism of judicial review such as Jeremy Waldron’s, but producing a satisfactory one will be very hard indeed.
Double Aspect 
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