Bertrall L. Ross

Measuring Political Power: Suspect Class Determinations and the Poor

Which classes are considered suspect under equal protection doctrine? The answer determines whether courts will defer to legislatures and other government actors when they single out a group for special burdens, or intervene to protect that group from such treatment. Laws burdening suspect classes receive the strictest scrutiny possible and, under current doctrine, whether a class is suspect turns largely on whether the court views the group as possessing political power. But how do courts know when a class has political power? A plurality of the Supreme Court initially suggested that political power should be measured according to a group’s descriptive representation in politics. Under that measure, the mostly white, male, wealthy, and straight makeup of most of the nation’s decision-making councils would indicate that other less well represented groups lack political power. But that measure never received majority support from the Court. Instead, the Court consolidated around a different measure of political power, one that focused on democratic actions favorable to a group. If laws have been enacted protecting the group from discrimination or otherwise advancing the group’s interest, the Court assumes that the group can attract lawmakers’ attention and therefore does not need judicial protection.In the forty years since the Court introduced this measure of political power, it has not found a single class suspect. In fact, it is hard to imagine the Court finding any class to be politically powerless under this measure. Even the most politically marginalized groups (such as the poor, non-citizens, and felons) have benefited from laws favoring their interests. This leads us to question whether favorable democratic action is a reliable measure of political power? Focusing on the poor, we advance the first empirical test of the Supreme Court’s measure of political power. Our findings suggest that legislators’ support for anti-poverty legislation is not motivated by the political power of the poor — implying that favorable democratic action does not always reliably indicate a group’s political power. Given these findings, we argue that the court should rely on a more holistic, and thus more reliable, measure of political power. The measure should include favorable legislative actions, but also indicators of lobbying activity, political responsiveness, voter turnout, and descriptive representation in politics.

Democracy and Renewed Distrust: Equal Protection and the Evolving Judicial Conception of Politics

Judicial interpretations of the Equal Protection Clause have undergone a major transformation over the last fifty years. A Supreme Court once suspicious of the democratic losses of discrete and insular minorities, now closely scrutinizes their democratic victories. A Court once active in structuring the democratic process to be inclusive of racial and other minorities, now views minority representation in the political process as essentially irrelevant. A Court once deferential to exercises of congressional power that enhanced the equal protection rights of minorities, now gives Congress much less leeway.What explains these shifts? An easy explanation is that the Supreme Court has simply become more conservative. But what underlies this conservatism? In this Article, I argue that the Court’s own evolving conception of politics underlies the changes in the meaning of equal protection. In the past, the Court saw politics through the lens of pluralist theory, the crucial defect of which was the risk that minorities would be politically marginalized. That understanding has given way to a public choice conception in which the Court presumes these same minorities to be too politically powerful. In essence, one form of judicial distrust of democratic politics has replaced another.I argue that two primary sources produced this renewed distrust: changing conservative views of the position of minorities in politics and a conservative legal movement that rejected pluralism in favor of public choice theory as the most accurate description of the operation of politics. I conclude by identifying important normative questions that this theory raises for constitutional law scholars and by offering a prescription for civil rights advocates seeking to influence judicial interpretations of the Equal Protection Clause.