“Politics as Markets” after 25 Years: Lowering Expectations about the Role of the Courts in U.S. Democracy

It’s hard to overstate the importance to the legal academy of Sam Issacharoff and Rick Pildes’s article from 1998, Politics as Markets. Their shift of the focus of election law from rights and interests to the structure and function of the political and electoral system led a generation of election law scholars to a greater focus on competition and the role of institutions. Despite concerns expressed by Bruce Cain, Dan Lowenstein, Nate Persily and me about the risks and limits of the structural approach to election law, it’s fair to characterize Politics as Markets as having moved from radical innovation to accepted orthodoxy.

Politics as Markets has had less influence on U.S. courts than on academia. In my initial critique of Sam and Rick’s piece, I included a discussion of the limits and risks of relying on courts to promote “adequate” political competition, believing both that such terms were contested and would prove difficult for courts to agree upon and administer. And in fact, aside from Justice Breyer’s flirtation with incorporating competition into constitutional doctrine in the campaign finance case, Randall v. Sorrell, the U.S. Supreme Court has been pretty hostile to arguments for it to consider appropriate political competition, from its dismal line of ballot access cases, to its Lopez Torres decision in which Justice Scalia for a Court majority affirmatively rejected political competition as a concern of the courts, to the Rucho v. Common Cause case where the Court declared political gerrymandering nonjusticiable in federal courts. Concerns over competition have not fared well.

Indeed, despite Sam and Rick’s promise of courts saving us from political sclerosis, the courts have been mostly a disappointment. What’s worse, in my view as a non-structuralist, the Supreme Court has failed to protect voting rights adequately, and, as I argue in my upcoming book, A Real Right to Vote, the Court has sinned most greatly in its stingy reading of Congress’s power to protect voting rights under the Reconstruction and other voting rights amendments. Even though Sam and Rick are concerned primarily with structural issues, I think they likely will agree with my critique of the role of the courts when it comes to implementation of the Court’s balancing of rights and interests, especially in the protection of minority voters.

This is not to say that the Supreme Court necessarily plays a negative role in U.S. democracy. Importantly, the Supreme Court and the lower state and federal courts held the line in 2020, when the specter of election subversion moved from theory to reality in a startling and concerning way. The Court may not be prepared to generally police the political process, but the Justices are also resistant to becoming accomplices in the full demise of American democracy.

Courts today can’t solve our problems with negative partisanship, polarization, fragmentation, and other modern maladies that affect the American body politic. But they can help hold the line so that we can continue to have a (flawed) political marketplace and not authoritarianism.

That’s a low bar, admittedly, and far from the invigorating role that Sam and Rick imagined for the judiciary in the late 1990s. But it’s a backstop role I’m grateful for nonetheless.

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