The Political Process, Equal Protection and Substantive Due Process

Jesse H. Choper, Stephen F. Ross
2017 Social Science Research Network  
In its landmark ikcision in Carolene Products, the Supreme Court crq/1£d a uniquely American so/,ution t,o the counter-majoritarian dilemma present in any constitutional democracy: when undect,ed judges should substantive/y review policy choices made by elected legislawrs and executives. The political process theory unikr/ying lhat ikcision is lhat a court with a history ef decisions based on judicial ideology should limit close review ef government actions t,o three situations: (1) when the
more » ... ion contravenes a specific provision ef the Bill ef Rights, (2) when the action threatens t,o improper/y limit the political process, or (3) with regard t,o the broad/y worded Due Process and Equal Protection Clauses, when courts iktermine that the political process does not work normal/y. The Supreme Court has not faithfally implemenkd this approach over the years. However, neither Justices nor commentawrs have ikveloped a superior alternative approach. We believe that most Americans ought t,o prefer a return t,o Carolene Products, as superior (either philosophical/y or because ef risk aversion) t,o leaving important constitutional preceiknts subject t,o the vagaries ef high/y partisan politics. Our approach builds uprm insights of Justices Harlan Fiske Swne, Robert Jackson, and Thurgood Marshall. First, caurts should consiikr challenges initial/y unikr the Equal Protection Clause. Second, the category ef cases warranting heightened judicial scruti.rry should be expanikd t,o inc/,uik those in which claimants can prove that they are excfuded .from the Madisonian factional "wheeling and dealing" that characterizes ordinary politics. Third, substantive due process claims should remain available, but only where claimants can ikrnonstrate that animus or prqudice precludes their ability t,o use the political process to redress their grievances.
doi:10.2139/ssrn.2952862 fatcat:5jcx3u4uafclbn23l7slsi6hqi