The Courts v. Democracy

Photograph Source: Phil Roeder – CC BY 2.0

Aristocratic Structure

Of the six major controversies to convulse the Supreme Court since 2000, exactly half have been over personnel. First, in 2016, the Republican Senate refused to consider President Obama’s nomination to the court, claiming that nine months was too soon before an election and that the American people should have a say; then, in 2017, Trump’s nominee to the Court, Brett Kavanaugh, was credibly accused of sexual assault and confirmed amidst national protests; and now, less than two months before the 2020 presidential election, Republicans are vowing to confirm a justice to replace Ruth Bader Ginsburg regardless of the election results.

That a simple hiring decision can plunge the nation into crisis suggests an institution in profound upheaval, its legitimacy threatened by the increasing gap between its presentation as a non-political arbiter and the profoundly political nature of its job. If one of the central goals of liberal democracy has been to sever the power and legitimacy of political institutions from the personalities of the people who occupy them, if, in Karl Popper’s words, “what we need is not so much good men as good institutions,” then the Supreme Court is failing.

How can a woman’s control over her body be threatened by a single malfunctioning pancreas? The legitimacy of our highest court imperiled by a man’s alleged sexual transgressions at seventeen? For democrats, who believe that political power should be spread as widely and evenly as possible, the question is simpler: how has power become so concentrated that the fate of our judicial system hangs on the retirement plans of nine unelected lawyers?

There are three components to the democratic predicament of our judiciary: aristocratic structure, oligarchic function, and democratic potential. First, the structure of our federal courts is narrow and undemocratic; second, this aristocratic structure insulates judges from accountability, but not from the organized influence of money, which has overwhelmed the court system. But there is nothing inevitable about this predicament. We already have an inclusive and democratic form of justice that works—citizen juries. Juries are never mentioned as a potential cure to the serial crises of the Supreme Court; fearing their democratic efficacy, the rich and powerful have continuously tried to sideline them. But the arguments against citizen juries rest on elitist assumptions that are incompatible with democracy and laughable when we look at the record and reasoning of our professional judges.

The Supreme Court—both the summit and symbol of our legal system—is made up of nine justices who are nominated by the President, confirmed by the Senate, and serve lifelong terms. The arguments in favor of this arrangement mostly coalesce around three justifications that are mutually incompatible and unconvincing. The least sophisticated argument for a small court of elite lawyers is that interpreting the Constitution is a legal rather than political affair, and thus we need the most intelligent and qualified experts to apply the Constitution to our laws and legal disputes.

If this were the case, none of the Court’s personnel fights would have been crises to anyone but a small coterie of legal experts, and no one would be justifying their presidential vote based on promised judicial nominations. But, as is obvious to most citizens, applying the Constitution entails deciding the scope and meaning of “cruel and unusual,” “due process,” “equal protection,” “marriage,” and “speech”—and such decisions are irreducibly political in nature, involving people’s deepest held convictions, prejudices, and values.

Given that the Constitution is lucidly written but ambiguous on many points, it is unclear why the interpretation of an unrepresentative, unelected, elite minority is preferable to the interpretation of the average citizen. For example, Citizens United v. FEC boiled down to whether money should be treated as an equivalent of speech. There are three ways of answering this question: relying on precedent, if it exists, which is abdicating thinking to a previous generation; trying to figure out the intentions of the founders, which is either another abdication of responsibility, or a way to justify your own preferences without providing arguments for them; and, the democratic route, interpreting the Constitution according to one’s own understanding of both the text and the spirit of democracy.

The pertinent question in the Citizens United case then becomes: if the ability of any citizen to speak in the public sphere is a prerequisite for democracy, guaranteed as such in the First Amendment, then does unlimited spending in elections enrich free speech or simply make it easier for the rich to drown out the rest?

Even in more complicated cases, where the controversy is not immediately clear, such as when the Affordable Care Act was accused of violating the Commerce Clause of the Constitution, it is up to the opposing lawyers to make clear what is at stake. The role of the judge is to decide on the merits of the arguments and the desirable interpretation of the Constitution. And to those who question the ability of citizens to interpret difficult passages of the Constitution, I ask, can they do worse than the current Court, which in 2000 stopped the counting of ballots in an election, and then in 2010 allowed unlimited, untraceable spending for all future elections? Why is sophisticated legal knowledge preferable to common sense, especially since the former seems to consistently destroy the latter in our Court rulings?


If the first argument against democracy is elitist—only the initiated can decipher the true meaning of the Constitution—the second is apparently anti-authoritarian: given the Court’s responsibility to interpret the Constitution and check the power of the other two branches of government, it must be insulated from the pressure of politics. But the link between this argument and the structure of the Court is not obvious. First, although we may not want justices to stand for reelection, or to be elected at all, it does not follow that we want them to be selected by the President from amongst the legal elite.

Authorizing the President to choose justices for life absolves them of political accountability, but allows the President to choose them on partisan political grounds. Or in other words, the nomination process vitiates the purported advantage of the lifelong appointment—independence. Although the President cannot fire a justice, he can and increasingly does vet nominations to ensure they will never cross him in the first place.

Thus, we have judges who are partisan without being accountable, untouchable without being independent. The House has the power of impeachment, but the members have tried to impeach a Supreme Court justice only once, and they failed. Not that there haven’t been recent cases of impropriety. In 2011, it came to light that for five years in a row, conservative justice Clarence Thomas had filed tax claims asserting his wife had zero income, when in fact she made over $686,000 in those years. The money came from the Heritage Foundation, an ultra-conservative think-tank with strong views on virtually every case that comes before the Supreme Court.

If the first two arguments justify the undemocratic selection process and composition of the Court, the third line of defense is the most paradoxical, for it asserts that the Court is in fact democratic: we choose the man who then chooses the justices. But choosing rulers is not the same as ruling; elections are not synonymous with democracy. The idea that the Court is democratic because we choose the man who then gets to choose the new justice is not only dubious; it contradicts the previous two arguments in favor of the Supreme Court, which seek to preserve the neutrality and independence of the courts.

Choosing a president to then chooses a justice who shares our values gives us the downsides of an “independent” judiciary without the supposed benefits: a Court that is both partisan and undemocratic, selected to reliably promote a particular set of values rather than the public good, and completely unaccountable to the vast majority of citizens.

Oligarchic Function

The undemocratic structure of the Court does not, on its own, explain the blatantly antidemocratic bent of many of its recent rulings. The first three major Supreme Court controversies of the new century were all intrusions into the electoral process that elevated the power of money at the expense of the poor and powerless: First, in the presidential election of 2000, the Court overturned the ruling of Florida’s Supreme Court in order to halt a ballot recount—disenfranchising tens of thousands of Floridians, and ensuring the victory of the multimillionaire Bush, who would go on to lower taxes on the rich, eviscerate environmental protections for the fossil fuel industry, and launch wars that were as profitable to his cronies as they were devastating to the peoples of Afghanistan and Iraq. Then, in 2010, the Court ruled that political spending was a protected form of expression that could not be limited, further inundating an electoral system awash in money. And finally, in 2013 the Court gutted the Voting Rights Act, opening the door to massive racial voter suppression.

Where political power is weakened, economic power fills the void, and the antidemocratic abuses of the Supreme Court must be understood in this light, as the deliberate interferences of a Court determined to weaken political power in favor of economic power. This pro-corporate bent is not unique to the highest court, and to understand the underlying corruption, it’s necessary to consider the judiciary as a whole—an integrated system in which the state and lower federal courts not only provide the personnel, but also many of the cases and arguments that make it up to the higher courts.

There has been a sustained and admirably executed attempt to bring our judiciary into the orbit of money, and from law school through the states courts all the way to the federal Supreme Court, it has been successful. In almost half of state courts—where ninety percent of the country’s litigation takes place, including constitutional cases on abortion, LGBTQ rights, the environment, voting rights, and criminal justice—vacancies are filled by election, and the Supreme Court has helped radically corrupt these elections with its rulings in Citizens United v. FEC, and less famously, Republican Party of Minnesota v. White, which allowed judicial candidates to announce their policies on political and legal issues. Taken together, these decisions made it possible to ideologically vet and then drown the chosen candidate in cash.

In West Virginia, the CEO of Massey Energy financed an ad that accused a judge of letting sex offenders loose among the children. The judge’s real crime was that he tended to side with coal workers against Massey Energy, which regularly explodes mountaintops. But as Michael Shnayerson reported in Vanity Fair, the campaign against the judge did not mention Massey Energy, or the fact that the company was simultaneously trying to reverse a $50 million judgment.[1] In Wisconsin, worried that Governor Scott Walker would lose the majority on the State Supreme Court, a network of lobbyists raised $3.5 million to sway the election. The favored judge narrowly won and promptly repaid the favor by casting the decisive vote that terminated a criminal investigation into Walker’s campaign financing.[2]

This predictable corruption of the electoral process is one of the main justifications for the nomination of all federal judges. But although the nomination process lends the federal judges a patina of independence, it has not guarded them from corporate vetting.

The strategy is simple: to train and promote a cadre of reliably pro-corporate lawyers who will go on to populate the highest echelons of academic and political power. The first step of this process, which started in the 1970s, was to enlarge and distort the curriculum at the most prestigious law schools. John Olin, whose ammunition and chlorine company dumped sixty-six thousand tons of chemical waste into a landfill in Niagara Falls and then falsified its records, has poured more money into the effort than anyone else. His foundation bequeathed $18 million onto Harvard for the John M. Olin Center for Law, Economics, and Business; and millions soon followed to other prestigious schools to teach Law and Economics, a fringe discipline that evaluates laws by their economic impacts.[3] The foundation even paid students at Georgetown and Columbia to attend workshops on the subject. As Jane Mayer reports, “by 1990, nearly eighty law schools taught the subject,”[4] including the Antonin Scalia Law School at George Mason University, a public university twenty minutes out of DC that has been in the news for allowing the Charles Koch Foundation a vetting role in faculty recruitment.[5]

The next step was to create an organization where rightwing lawyers could congregate, organize, and signal their corporate fealty to those in power. The Federalist Society, another recipient of Olin’s largess, was founded in 1982 and now has more than 45,000 members, including all of the conservative members of the Supreme Court, Dick Cheney, and John Ashcroft. As Steven Teles writes in his history of the conservative legal movement, “by hiring the Society’s entire founding cadre, the Reagan administration sent a very powerful message… clear ideological positioning, not cautiousness,” was the essential characteristic of a judge.[6]

The grooming of judges turns to petting once they have power. Up to forty percent of federal judges has attended all-expenses-paid trips to luxury resorts, where between golf rounds, they are treated to the views of corporate lawyers, scientists, and CEO’s on the dangers of regulation. Occasionally, the corporations funding the seminars have cases currently pending in front of the judges; unsurprisingly, many of the judges then fail to report these corporate retreats on their ethics disclosures.[7]

With an ideologically reliable cadre of lawyers in place at institutions and courts around the country, organized money then catches the judiciary in a pincer movement, with strategic litigation on the other side of indoctrination. Corporate-funded legal foundations scour case reports throughout the country, looking for opportunities to win anti-regulation, pro-business rulings. Sometimes, conservative justices even signal the type of argument and case that might be effective. As Adam Liptak reported in the Times, after Supreme Court justice Alito digressed from a case on public unions to question the constitutionality of making non-union members pay fees for the work unions do for them, a libertarian group quickly filed the exact same challenge Alito had laid out, and then asked a lower court to rule against them so they could argue in front of the Supreme Court.[8]

And when the pincer doesn’t line up—the court unreliable or the legal challenge sloppy—corporations can turn to the academy. According to former Rhode Island Attorney General Sheldon Whitehouse, after the state’s Department of Health announced that lead paint was children’s primary environmental health problem, Whitehouse prosecuted and won a case against the industry in front of a jury. Undeterred, the defendants brought the case to the state Supreme Court, which, citing an academic law article, overturned the jury’s verdict. Only later was it revealed that the article had been written by a paid consultant of the paint companies.[9]

The corruption is so blatant and endemic that one would expect widespread revolt, but our courts are shielded from public scrutiny by the same elitist institutions and assumptions that justify their undemocratic composition: that law is a complicated business, best left to experts.

Nowhere are the rituals of authority and expertise more important than at the Supreme Court, which remains the most visible embodiment of a judicial system that protects the powerful against the powerless. Our current majority—the Roberts Court—has consistently made it harder for citizens to sue corporations for any type of crime. For example, although the FDA estimates that over eighty percent of drugs are fulfilled using generic drugs, the Court has made it effectively impossible to sue generic drug companies for failure to adequately warn of side effects or for design defects. When a woman took a painkiller that burned sixty percent of her skin and left her disfigured and nearly blind, the Supreme Court ruled that the company couldn’t be held liable at all, because it had no other choice than to copy the defective brand-name product.[10]

Without the presumption of expertise, would we tolerate these insults to our common sense?

The Court also discourages class action suits. Although judges have historically ignored contracts of adhesion—in which the customer has to sign an agreement as a condition of using a service—the Roberts Court has consistently held up these contracts, while recognizing that they effectively prevent class action lawsuits. And when class action suits nonetheless proceed, the Court has inserted arbitrary conditions. In 2011, the Court rejected the sex discrimination lawsuit filed against Walmart by more than a million female employees, arguing that the individual cases lacked commonality—a prerequisite of class action lawsuits—because the discriminatory hiring and pay decisions had been made by different managers, in different stores all over the nation.[11]

Again, why are we surprised that an elite group of corporate-vetted judges wages naked class war?

After realizing she was being paid significantly less than her fellow male managers, an employee of Goodyear Tire filed a lawsuit, and a jury awarded her $3.3 million. The Court overturned the jury, arguing that the statute of limitations on her claim had run out: even though she was still being underpaid, the underpayment had started more than a decade ago.[12] As Ginsburg noted in her dissent, a third of private companies prohibit employees from discussing their wages, making it virtually impossible to know when pay discrimination starts. In other words, by refusing to treat each underpayment as a new crime, the Court ensured that many pay discrimination suits would be past their statute of limitations before they were even discovered.

As the legal scholar Erwin Chemerinsky argues, these decisions were not only deliberately obtuse, directly undermining the legislation they claimed to uphold, but also legally fatuous. The distinctions—between brand-name and generic drugs, between the first underpayment and the most recent one, and between underpayment in a California Walmart and an Arizona Walmart—were arbitrary and untenable. They were not based on the judge’s sophisticated appreciation of the law, but rather on the manipulator’s disdain for it.

Perusing the record of the Roberts Court, it is tempting to conclude that the corporate strategy—molding young jurists in the top law schools, funneling them through rightwing legal foundations and into power, while simultaneously flooding the courts with promising cases and the law journals with corporate arguments—has been far-sighted and remarkably successful. No doubt, but the Roberts era also blends in alarmingly well to the larger history. If the role of the Court is to uphold the Constitution against the overreaches of the legislature and the President, and to protect the rights of minorities, then not only have the justices failed; as Chemerinsky argues, they “have failed especially at the moments when they were needed most,” those moments of political crisis when expediency overtook all principles.[13]

To take only three notorious examples: in 1857, Dred Scott v. Sanford, the Court went beyond the Constitution to argue that Blacks were property and could never be citizens. Seventy years later, the Supreme Court upheld the right of the government to suppress speech even when the citizens advocated nothing more than writing to congressmen to repeal the draft law. And in World War II, when the US government interned more than 100,000 Japanese and German Americans, the Court ruled that locking these citizens up solely due to their ethnicity did not violate the Equal Protection Clause of the Constitution, noting that “hardships are part of war.”[14]

To say that the Court is simply a product of its time might be true, but ignores the extent to which it consistently sides with the ruling elites against the underclass. And why would one expect anything different from a Court selected by the most powerful man in the country from a narrow cadre of well-connected and well-compensated lawyers? Defenders of the institution often point to the Warren Court as an example of what the Court can achieve, but it is perhaps more important to note that it took the Court eighty-six years to begin fully enforcing the Fourteenth Amendment—and only once racial segregation had become a staple of Soviet propaganda and an international embarrassment. As the Kremlin put it, these people “who dream of nooses and dynamite… who throw rocks at defenseless Negro children—these gentlemen have the audacity to talk about ‘democracy and speak as supporters of ‘freedom.’”[15]

Democratic Potential

There are two ways of judging a democratic institution: structurally and functionally. First, do many citizens participate in the institution, and if not, are there ways for the citizens to hold it accountable? And second, whose interests does the institution protect and serve? That our courts abjectly fail both tests—that they are structurally undemocratic and functionally antidemocratic—is now obvious, but this failure is rendered more acute when we consider the particular political role of the judiciary in a democracy. Riven by the conflicting desire to spread power as widely as possible and the need to concentrate certain functions of government, democracy relies upon the judiciary to keep those in government nervous and hold them to account. This is the sense in which the judiciary must be independent: insulated enough from the rest of government and from the other major power centers to explode power wherever it congeals, to bring the most powerful in society down to the level of the laws.

The prime historical examples we have of courts that satisfy these criteria—that are democratically constituted and protect the powerless from the powerful—are citizen courts. In the US, civil juries determine the facts and decide the fault in non-criminal trials, from property disputes all the way up to multi-million-dollar class-action lawsuits. These jury courts are feared and loathed by those with power. As Sheldon Whitehouse writes, “corporations are accustomed to the benefit of enormous special influence, whether acquired through campaign contributions, traditional lobbying, regulatory capture,” or paid trips to the Bahamas. “Tampering with executive, legislative, and administrative agencies is a licensed activity of special interests under our lobbying and campaign finance laws. Tampering with juries is a crime.”[16] It is also more difficult, given the short notice and one-off terms of service.

There is no stronger endorsement of jury courts’ ability to deliver justice, even against the most rich and powerful, than the concerted effort by those in power to sideline them. In 1938, when the Civil Rules of Procedure were adopted, twenty percent of federal cases were resolved by a jury or a bench trial. Today, this is true of only two percent of cases, and for several reasons. First, the prohibitive and growing costs of litigation in the United States make people eager to settle as soon as possible rather than go to court—especially when they are faced with a well-funded coterie of corporate lawyers. Second, arbitration clauses make it harder to sue corporations. Third, a series of decisions by the Rehnquist Court made it far easier for cases to be summarily thrown out.

Even when cases reach a jury, they are often overruled by the higher courts. In many of the egregious Supreme Court cases cited above—including the woman who had half her skin burned off by a prescription drug—jury courts reached the common-sense solutions, awarding the victims millions in damages, only to be overruled by the Supreme Court. One would think the Supreme Court would overturn the verdicts of democratic juries cautiously and rarely, but its reasoning is often comical.

In 2014, a jury found former Virginia Governor Bob McDonnell guilty of eleven counts of corruption. While in office, the Governor had accepted lavish gifts—including an engraved Rolex, catering for his daughter’s wedding, $25,000 flights, and a $15,000 dollar shopping spree at Bergdorf Goodman for his wife—in exchange for extraordinary political access.[17] In Virginia, it is legal for politicians to accept gifts as long as they disclose them, but in the case of the Rolex watch, the shopping spree, and the wedding catering, the Governor failed to do so.[18] Nonetheless, despite the manifest corruption and the clear-cut violation of Virginia law, the Supreme Court unanimously overturned the jury’s verdict on the grounds that there was no direct quid pro quo.

This narrow and obtuse definition of corruption suggests what the record of our judicial system proves: that our laws are too important to be left in the hands of lawyers. Although this may sound paradoxical, the true paradox is how a democracy—built upon the premise that there is no such thing as political expertise, that in matters of public concern, we all deserve an equal voice—can give a few specialists the final word in interpreting our laws.

Like every other legal institution, citizen juries can be monstrously unjust, but the well-documented racism of many jury decisions would not be solved by narrowing the number of judges, but by ending lawyers’ right to exclude certain members of the jury, and by ensuring that juries are larger and more representative.

Moreover, if individual prejudices make juries an imperfect arbiter of individual crimes, these prejudices weigh less heavily in more general questions of the law. And yet, although few people have problems letting juries decide on individual guilt, almost no one thinks that randomly selected groups of citizens should take on the responsibilities of the higher courts. In part, this is because we are inured to passivity, and despite all evidence, cling to the comforting idea that democracy is possible without the ongoing participation of the majority of citizens. In part, it is due to elite contempt for the intelligence and abilities of the lower classes. Widespread loyalty to Trump and the Republican Party seems to back this prejudice up, but one cannot judge how people will behave with power based on how they act when they are powerless.

And the third reason for skepticism—the enormous complexity of American laws—raises two questions: why are they so complex? And what would happen if we let citizen courts interpret them? The answer to the first question is that too many of the people involved in writing the laws, from representatives to lobbyists, have an interest in keeping them opaque: the former to protect their reputations, the latter to ensure their clients aren’t actually bound by the laws. In other words, our laws are complex for mostly bad reasons: so that those with power can misrepresent and manipulate them.

But although citizen courts would not, on their own, solve this problem—for that we would need a less oligarchic legislature—they would mitigate it. Since most citizens would not master the intricacies of a 10,000-page law like the Affordable Care Act, they would be forced to interpret claims for and against it based on the spirit rather than the letter of the law, and this in turn would reduce the temptation to write such complex laws in the first place.

To see how a judiciary of citizen courts would work, and how radically different it would be from our own, one has to go back to the society that gave us the word and practice of democracy. Ancient Athens was not a democratic society—with slaves and women excluded from politics—but within the narrow political sphere of the roughly 30,000 male citizens, power and responsibility were shared in a way that remains illustrative. Not only was the legislative assembly open to all, but the courts were in the hands of magistrates selected by lottery, and final judgment was handed down by a jury of several hundred, also selected by lottery.[19]

Litigation was the primary means by which citizens held the powerful to account, and it was a strictly and deliberately amateur affair: there was no state prosecutor; every charge had to be brought by an ordinary citizen; and it was a crime to pay someone else to appear as one’s advocate in court. The amateur nature of the courts served two functions: to ensure people retained their sense of ownership and responsibility over the laws, and to prevent the wealthy from buying themselves the advantage of professional representation.

The courts had enormous power over administrative tasks, the law-making assembly, and the magistrates. When public works were put out to auction, the auction took place in the presence of a panel of jurors, an enviable precaution when we consider the proliferation of no-bid contracts in our own government and the mind-numbing waste of money on military gadgets. The court’s control over the assembly was comparable to judicial review, but predictably, given the democratic and amateur nature of their courts and the professional and elite nature of our own, the grounds for declaring a law unconstitutional in Athens were broader and less legalistic.

Any citizen could accuse any magistrate; for bribery alone, a magistrate could be taken to court in seven different ways.[20] In addition, at the end of the year, each magistrate had to give account of his actions and expenditures in front of the courts, where he could be accused once again by anyone. The underlying rationale was simple: even in a democracy, power will not be evenly distributed, but this makes it all the more important to submit those in high positions to the judgment of the people.

The continuous exposure of those in power to litigation from the average citizens is in lurid contrast to our own system, where the unaccountable Supreme Court has worked hard to shield other government officials from accountability. Like Athens, the US is a notoriously litigious society, but our courts have strictly circumscribed the permissible targets. The Supreme Court created the doctrine of absolute immunity, soi-disant to allow magistrates to conduct their duties in peace and free from reprisals. The list of activities protected by absolute immunity—making it impossible to hold the perpetrators liable for money damages—includes judges performing judicial tasks, prosecutors performing prosecutorial tasks, legislators performing legislative tasks, law enforcement personnel testifying as witnesses, and the President performing executive tasks.[21]

All government officials sued for money damages for constitutional violations are protected by qualified immunity, and the Roberts Court has raised the standards of qualified immunity close to absolute. When a prosecutor found exonerating DNA evidence and then illegally hid the evidence from the defendant, the Supreme Court ruled that the local government could not be held liable for damages, even after a jury had awarded the wrongfully accused defendant $14 million in damages. In Stump v. Sparkman, the Court ruled that the victim could not sue the judge who ordered her surgical sterilization, even though he undoubtedly violated her constitutional rights. And almost 100 years later, the Court ruled 7-2 that school officials could not be held liable for subjecting a seventh-grade girl to a strip search to look for ibuprofen, even though they agreed that the search violated the Fourth Amendment.

There were abuses in the Athenian court system as well, but whereas in Athens the abuses tended to be spurious lawsuits against those in power—against the richest and most powerful members of society—in our own judiciary, the courts facilitate the abuses by the rich and powerful against the poor and helpless. Our justices have created a legal matrix in which it is simultaneously extremely easy to convict and incarcerate the poorest and most stigmatized members of society and virtually impossible to hold corporations and the government accountable for their much larger crimes.

The US has more than two million people incarcerated. That is twenty percent of the world’s entire prison population, and the vast majority of the inmates are poor or black—often both. At every stage of the process, from surveillance, to arrests, to the trial, and all the way to sentencing, African Americans are singled out, incarcerated at more than five times the rate of whites. They are far more likely to be frisked, to be pulled over for minor traffic violations, to be locked away, and when found guilty, to be executed.

Despite, or perhaps because the discrimination against African Americans is so blatant and easily proved, the Supreme Court has protected the lower courts from accountability. In 1987, it ruled that in order to show racial bias in sentencing, the prosecutor not only has to provide statistical evidence, but also proof of conscious, discriminatory intent.[22] In other words, as long as the policeman or judge does not explicitly announce the racial prejudices motivating his judgment, nobody can be held to account for racially based sentencing.

If racism pervades the whole system—from the prejudices of individual officers and judges through the targeting of black communities to the arbitrary distinctions between crack and cocaine—class is also built into the structure of criminal injustice. As massive funds are released to scour the poorest neighborhoods for crime, budgets for white-collar crime, are repeatedly slashed. Once incarcerated, not everyone can afford bail or to hire a lawyer. The public defendants are so overworked they often have little more than ten minutes per client, meaning that many defendants have no effective recourse even when they’re innocent.

The results are as predictable as they are despotic. The powerless: Gary Howard sentenced to eighteen years in prison, a year for every gram of marijuana in his possession; Breonna Taylor shot in her bedroom after a judge had approved a search warrant for drugs she did not have; Phillip Bevens and Bobby Ray Dixon—threatened with the death penalty for a murder they didn’t commit—compelled to testify against a third innocent man. The powerful: John Yoo, author of the torture memos, rewarded with a professorship at Berkeley; the Wall Street CEOs, who falsely touted assets they knew to be junk, receiving yearly bonuses that a black prisoner couldn’t accumulate in 500 years of forced wildfire labor; Gina Haspell, who personally oversaw torture, director of the CIA. In the latter cases—the government’s planned and deliberate violation of the Geneva accords on torture, and Wall Street’s criminal and lucrative fraud—the perpetrators were not found innocent. Obama’s Justice Department never even accused them.

These examples, to which one could add thousands more on both sides, sum up the orientation: the American judiciary, far from providing a democratic check on corporate and government power, instead exercises an aristocratic check on all forms of popular power and a despotic discipline against the most marginalized in society.


Since Plato, who supported the pro-Spartan oligarchy that overthrew Athenian democracy, there have been two main arguments against rule of the people. First, that it is the reign of instability and sudden change. But as we see with the death of Ruth Bader Ginsburg, the acrimonious political crisis it has engendered, and the prospect of many long-established laws suddenly being overturned, it is the concentration of power that makes institutions both fragile and fickle.

And second, that democracy is mob rule. But although we cannot always count on the wisdom of crowds to deliver justice, we can count on aristocratic institutions to be infiltrated by money, and on oligarchy to crush the poor and protect the powerful. This is why we fight for democracy. And in a democracy, the ability to convoke government officials and imprison CEOs, the authority to interpret the laws, and in exceptional cases overturn them, can only lie with the vast majority of citizens. Thus, as the nation mourns the death of Ruth Bader Ginsburg, who fought for equality in the workplace and in the ballot box, but who also presided over our laws for over 27 years without being elected or ever submitted to accountability, we must expand her vision of equality to include truly democratic courts—citizen courts.


1) Michael Shnayerson, “The Rape of Appalachia,” Vanity Fair, November 20, 2006.

2) Ed Pilkington, “Leaked documents reveal secretive influence of corporate cash on politics,” The Guardian, September 14th, 2016.

3) Jane Mayer, Dark Money, (Anchor Books, 2017). p. 117; 130-4.

4) Ibid., p. 133.

5) Colleen Flaherty, “Uncovering Koch Role in Faculty Hires,” in Inside Higher Ed, May 1, 2018.

6) Steven M. Teles, The Rise of the Conservative Legal Movement: The Battle for Control of the Law (Princeton University Press, 2008). p. 142.

7) Sheldon Whitehouse, Captured: The Corporate Infiltration of American Democracy, (The New Press, 2017). p. 72-75.

8) Adam Liptak, “With Subtle Signals, Supreme Court Justices Request the Cases They Want to Hear,” The New York Times, July 6th, 2015.

9) Whitehouse, Captured. p. 75.

10) Erwin Chemerinsky, The Case Against the Supreme Court, (Penguin, 2014), p. 164-71.

11) Ibid. p. 173-180.

12) Ibid. p. 186.

13) Ibid. p. 11.

14) Ibid. pp. 24-6, 61-4, 1-4, 54-8.

15) Quoted in, Carol Anderson, One Person, No Vote: How Voter Suppression is Destroying Our Democracy. (Bloomsbury Publishing, 2018). p. 18.

16) Whitehouse, Captured, p. 136.

17) Matt Zapotosky, Rosalind S. Helderman and Laura Vozzella, “Jonnie Williams had unusual influence over McDonnell’s office, Cabinet member says,” The Washington Post, August 7, 2014.

Emma Roller, “Jury Finds Former Gov. Bob McDonnell Guilty of Corruption,” The Atlantic, September 4, 2014.

18) Keith Wagstaff, “7 lavish gifts reportedly received by Virginia Gov. Bob McDonnell,” The Week, June 26th, 2013.

19) Mogens Herman Hansen, The Athenian Democracy in the Age of Demosthenes: Structures, Principles, and Ideology; translated by J.A. Crook. (Oklahoma University Press, 1999), p. 180.

20) Ibid. p. 193.

21) Chemerinsky, The Case Against the Supreme Court, p. 202.

22) Ibid. P. 109.

Xavier Wyche Flory is a Ph.D student in political science at Columbia University.