The following is a post by Rosalind Dixon, part of the Politics as Markets at 25 sympsosium:
Twenty-five years on, Sam Issacharoff and Rick Pildes’ Politics as Markets: Partisan Lockups of the Democratic Process continues to play a central role in shaping US debates over the appropriate role for the Supreme Court in policing the political process.[1] It has also helped spark a global conversation about the idea of courts and “democratic hedging” – or a form of modern “comparative political process” or “comparative representation-reinforcing” theory.[2]
Like Ely in Democracy and Distrust,[3] in Politics as Markets, Issacharoff and Pildes argue for an important and legitimate role for the US Supreme Court in protecting the channels of the political change. But unlike Ely, they emphasize the importance of constitutional structures rather than rights as the vehicles for the Court playing this role; and the importance of political competition as key to democratic accountability and change.
The US Supreme Court has not always endorsed these ideas. Indeed, in recent years the Court has arguably retreated from a willingness to protect competitive political markets – by declining to invalidate various forms of partisan gerrymandering.[4]
But still the relevance of Politics as Markets lives on – both in the US and elsewhere.
In the US, while declining to invalidate state electoral maps, the Court has upheld the ability of state courts to do so.[5] Politics as Markets-style ideas have also featured prominently in scholarship and legal argument in these cases. One reason is the power of the ideas themselves. Another is the role of the authors, and their longstanding co-author Pam Karlan, in litigation of this kind.[6]
In a global context, Politics as Markets has less direct influence, but considerable indirect influence through the work of the authors on comparative political markets. Witness Fragile Democracies,[7]Sam Issacharoff’s first book on threats to constitutional democracy worldwide, and how courts can effectively respond to those threats by engaging in a form of “democratic hedging”. As I have suggested before, these ideas are effectively the translation of the kind of structural, competition-focused approach advocated in Politics as Markets to the global stage.[8]
In his recent book, Democracy Unmoored, Issacharoff further extends these ideas, and engages with constitutional experiences in Brazil, India, Turkey, Poland and Argentina to show the importance of political parties (and competition) to democratic constitutionalism.[9] Pildes has likewise made important contributions to US and comparative debates about the relationship between political parties and constitutional democracy.[10] Both authors have thus been important contributors to an emerging school of comparative constitutional thought focused on the idea of comparative judicial representation-reinforcement (‘CRRT’).
As a sub-field, CRRT not only extends the ideas in Politics as Markets, and shows their breadth and reach. It points to three questions that may not have been fully apparent to the authors, when writing in the US in 1998.
First, in well-functioning democratic systems, it can be hard to determine the line between legitimate and illegitimate forms of partisan or incumbent advantage.[11] In the US, this is not always apparent – in part because most forms of partisan gerrymandering go far beyond what any reasonable notion of permissible partisan advantage would allow. But in a comparative context, there is a greater presumption of partisan symmetry, or a level playing field among political parties. And hence, there is more room to debate the legitimacy of small deviations from that level playing field. Comparative experience further suggests that would-be authoritarians may exploit this ambiguity, as a means of deflecting criticism of their anti-competitive tactics.
Second, the erosion of democratic competition often goes along with the erosion of a range of other democratic constitutionalist guarantees – including political rights and freedoms, and institutional checks and balances. For this reason, it may be useful to think of the kind of structural role envisaged by Politics as Markets as extending to the protection of three –
not simply – one aspects of what David Landau and I have called the “democratic minimum core”.[12]
Likening political to economic markets, Politics as Markets rightly foregrounds the importance to democracy and democratic accountability of regular, free and fair multi-party elections. Landau and I also endorse this understanding, as a key part of what it means to protect democracy. But we argue that even a relatively thin understanding of democracy, such as the kind Issacharoff and Pildes endorse, requires some additional rights-based protections (i.e., protections for political rights and freedoms) and institutional checks and balances. This is also an understanding we suggest can be drawn from an overlapping consensus among reasonable democratic theories or overlap in the actual practices of constitutional democracies worldwide. Comparison, therefore, helps point to an expanded conception of the minimum core of what democracy requires, even within the thin, competitive lens provided by Politics as Markets.
Third, courts alone may not be sufficiently powerful to engage in the successful protection of democratic political competition. Courts will have more capacity to do so where they have a long history of political, legal and civil society support, and work together with independent bodies or “fourth branch institutions” (such as election or equality commissions) to protect the democratic minimum core. And as Issacharoff and I have noted in joint work, it may be enhanced by careful, democratically-sensitive choices by courts about the strength and timing of their rulings and remedies.[13] But even this may not be sufficient for courts to succeed in the task of democratic hedging.
Take recent experiences in Hungary. One of the ways in which Viktor Orbán has gained and retained electoral power is through the kind of classic partisan lock-up strategies that were the target of Politics as Markets. That is, Orbán and Fidesz have increased the threshold for parties to be eligible for seats in parliament, limited voting eligibility for Roma and the poor (by requiring a fixed address to vote), banning political advertising and engaging in widespread partisan gerrymandering.[14] These tactics have gone hand-in-hand with a range of attacks on political rights and freedoms, including restrictions on NGO’s and civil society groups, and the political opposition.[15]
Yet Orbán has defended these tactics as within the zone of legitimate choice for democratic governments.[16] And early attempts by Hungarian courts to halt these developments were largely ineffective. In some cases, they met with outright defiance, and in others, a frontal attack on judicial independence.[17] The result was a long run degradation of the judicial role in democracy protection, and even in some cases, a shift toward anti-democratic or what Landau and I call “abusive judicial review” in Hungary.[18]
What, if anything, does this say for US audiences interested in the capacity of the US Supreme Court to engage in successful democratic hedging – say in the face of a potential successful re-election bid by former President Trump? Defenders of democracy should be prepared for Trump and his supporters to exploit the ambiguity in existing ideas of electoral fairness and insist that their own attempts at self-entrenchment are within the zone of legitimate incumbent partisan advantage.
Attacks on democratic and on civil society and rights groups will often go together; and defenders of democracy must be vigilant to ensure the ongoing political rights and freedoms of all groups – not just those explicitly advocating for democratic protection.
Finally, and perhaps most important, the Supreme Court may have a central role to play in protecting both structures of political competition and other aspects of the democratic minimum core. But even with its historical legitimacy and power, it may not have the power to do so effectively – unless other institutions, such as Congress, work in parallel to protect this minimum core.[19]
Similarly, just because the Court has historically played a role in upholding the Constitution, this does not mean that it will always continue to do so in the future. Instead, if its independence is sufficiently undermined, it may turn from a protector to an antagonist of true democratic competition and accountability.
Viewing Politics as Markets in global perspective, therefore, delivers on what Philipp Dann calls the “double turn” in comparative constitutional law: by considering the experiences of a diverse range of jurisdictions, we not only expand and refine existing constitutional theories and ideas.[20] We generate new ways of understanding those ideas that speak back to and refine how we understand them at their origin – in this case, in the US.
*Professor of Law, UNSW Sydney.
[1] Samuel Issacharoff and Richard H. Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50(3) Stanford Law Rev 643 (1998).
[2] On comparative representation-reinforcing theory (‘CRRT’), see Rosalind Dixon, Courts and Comparative Representation-Reinforcement Theory (Work in Progress), Rosalind Dixon, Responsive Judicial Review: Democracy and Dysfunction in the Modern Age (2022). On comparative political process theory, see Stephen Gardbaum, Comparative Political Process Theory, 18(4) Int. J. Const. Law. 1429 (2020).
[3] John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1981).
[4] See, e.g., Rucho v. Common Cause, 588 U.S. __ (2019), Benisek v. Lamone, 585 U.S. __ (2018). For commentary, see Josh Gerstein and Steven Shepard, Justices: Federal Courts can’t Police Partisan Gerrymandering (Politico, 27 June 2019), https://www.politico.com/story/2019/06/27/supreme-court-gerrymandering-ruling-1385302.
[5] Moore v. Harper, 600 U.S. 1 (2023). For commentary, see Zach Montellaro et al, Supreme Court Crushes Plan to Scramble Partisan Map-Making (Politico, 27 June 2023), https://www.politico.com/news/2023/06/27/supreme-court-ruling-supercharges-state-fights-over-partisan-gerrymandering-00103933; Zach Montellaro and Josh Gerstein, Supreme Court Denies State Legislatures the Unchecked Power to Set Election Rules (Politico, 27 June 2023), https://www.politico.com/news/2023/06/27/supreme-court-rejects-independent-state-legislature-theory-00103793.
[6] Lola Fadulu, Who Is Pamela Karlan? Legal Leader Committed to Progressive Causes (NY Times, 4 December 2019), https://www.nytimes.com/2019/12/04/us/politics/pamela-karlan.html.
[7] Samuel Issacharoff, Fragile Democracies: Contested Power in the Era of Constitutional Courts (2015).
[8] Rosalind Dixon, ‘Politics as Markets’ Goes Global (Jotwell, 12 February 2016), https://intl.jotwell.com/politics-as-markets-goes-global/. Of course, there was some precedent for this in the engagement with German experiences in Politics as Markets.
[9] Samuel Issacharoff, Democracy Unmoored: Populism and the Corruption of Popular Sovereignty (2023).
[10] Stephen Gardbaum and Richard H. Pildes, Populism and Institutional Design: Methods of Selecting Candidates for Chief Executive, 93 N.Y.U. L. Rev. 647 (2018); Daryl J. Levinson and Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311 (2006).
[11] I am indebted to Mark Tushnet for drawing this point to David Landau and my attention.
[12] Rosalind Dixon and David Landau, Abusive Constitutional Borrowing: Legal Globalization and the Subversion of Liberal Democracy (2022).
[13] Rosalind Dixon and Samuel Issacharoff, Living to Fight Another Day: Judicial Deferral in Defense of Democracy, 2016 Wis. L. Rev. 683 (2016). See also Rosalind Dixon, Responsive Judicial Review: Democracy and Dysfunction in the Modern Age (2022).
[14] András Bozóki, The Politics of Worst Practices: Hungary in the 2010s (SciencesPo, February 2015),
[15] Id.
[16] Rosalind Dixon and David Landau, 1989 – 2019: From Democratic to Abusive Constitutional Borrowing, 17 Int. J. Const. Law. 489 (2019); Rosalind Dixon and David Landau, Abusive Constitutional Borrowing: Legal Globalization and the Subversion of Liberal Democracy (2022).
[17]Kim Lane Scheppele, Not Your Father’s Authoritarianism: The Creation of the “Frankenstate,” EUR. POL. & SOC’Y NEWSL. (Am. Pol. Sci. Ass’n, Washington, D.C.), Winter 2013; Rosalind Dixon and David Landau, Abusive Constitutional Borrowing: Legal Globalization and the Subversion of Liberal Democracy (2022); David Kosař and Katarína Šipulová, Comparative Court-Packing, 21 Int. J. Const. Law 80 (2023).
[18] David Landau and Rosalind Dixon, Abusive Judicial Review: Courts Against Democracy, 53 U.C. Davis L. Rev. 1313 (2020).
[19] See Rosalind Dixon, Responsive Judicial Review: Democracy and Dysfunction in the Modern Age (2022)..
[20] Philipp Dann et al, The Southern Turn in Comparative Constitutional Law, in Philipp Dann et al (eds), The Global South and Comparative Constitutional Law (2020).