Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Unelected Democracy

Timothy Sherratt


April 6, 2012

By Timothy Sherratt

On his last day at C-SPAN, founder Brian Lamb lamented the absence of cameras in the Supreme Court. Interviewed by Politico, he observed that the public would benefit from cameras, “for the education alone.” After last week’s Supreme Court hearings on the constitutionality of the Affordable Care Act, it is hard to disagree.

The Supreme Court is an institution whose paradoxical character is well known to every first-year political science undergraduate. Unelected and powerful, it is simultaneously guardian and oligarch, protecting the Constitution and the will of the distant framers against the will of lawfully and recently elected officials and the citizens they represent. Few commentators can preserve a sense of neutrality in their evaluations of the Court’s performance. Liberal and conservative alike assail judicial oligarchy when it’s their ox being gored.

Every time the Court strikes down a law, it defies the popular will. If the popular will is to be defied, it should be for a legitimate purpose, leading to the conclusion that the Constitution enshrines foundational principles important enough to earn protection against the majority’s wishes.

To this familiar syllogism we may now add another layer of irony in the form of the unelected justices modeling democratic deliberation. The six hours of hearings introduced many to the democracy we could have—and I am drawing the contrast with polarized, Congressional politics deliberately.  Lucid, informed, intelligent, civil, following the rules of argument, not without a little humor but largely bereft of exasperation and the usual sour currency of our political discourse, the Court’s oral arguments held to a high democratic standard. The Court and the lawyers reasoned together, and the result was edifying.

Mr. Lamb has it right: The arguments educated us. They did so, not only in the thinner sense of providing clues to the shape of the coming decision, but also in the richer sense of inviting us to consider the law’s assumptions and implications. In particular, we were treated to an informed consideration of the relationships pertinent to the case, those among citizens and between citizens and government. Former Solicitor General Paul Clement, arguing for the law’s opponents, carefully dissected the relationship between those who must pay for certain services but who will never use them and those who will benefit from those payments because their own costs will be easier to bear. This distinction invited the listener to ponder the level of responsibility each citizen has for his or her own healthcare.

When did measured discourse like this pierce the Congressional shrillness?

The dialogue also opened up questions not directly addressed. For example, much attention was paid to those medical conditions one cannot control, which provide some of the strongest justification for the law’s actuarial arrangements—the big pool of the insured spreading the insurer’s risks when they tender coverage, irrespective of pre-existing medical conditions. But what of those conditions that do respond, for better or worse, to patterns of personal choice? Under universal coverage, what do I owe fellow citizens and how should this be reflected in my own actions?

The appropriate task of representative democracy is to give citizens a surrogate seat at the table where decisions are made. But that alone is not enough. Majority rule often preempts debate by counting votes ahead of it. Genuine democracy includes deliberation, because deliberation helps protect those on whom the law’s requirements fall. And the best form of protection is information. All this the oral arguments provided.

The skeptic will warn that these positive assessments are destined to fall apart when the judges announce their decision. I say, let’s resist the temptation to reserve judgment until victory or defeat has colored it with disappointment or cynicism. Whatever the outcome, American democracy was on display last week in its most robust form.

And that’s the final irony, isn’t it? We got the most democracy from the least democratic branch of government. Perhaps it is fitting to intone, “God Save the United States and this Honorable Court!” And TV? Well, whom would you rather watch?

—Timothy Sherratt is a Professor of Political Science at Gordon College in Wenham, MA.

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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”