John Hart Ely Democracy And Distrust- a Theory Of Judicial Review

ValpoScholar DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW\nBy John Hart Ely. Cambridge, Mass.: Harvard University Press, 1980. Pp. 268.\n\nI begin with three introductory premises concerning discourse on the role of the Supreme Court in the American polity which, although commonplace, may serve at least as background to my view of Professor Ely's contribution to that discourse. First, the central dilemma posed by the institution of judicial review in a democracy is that the institution is undemocratic and, therefore, at least facially incongruous with the predominant political commitment. Second, legal realism's devastating attack upon the notion that judges \"find\" law permanently impaired the credibility of that notion as a basis for legitimizing the institution, at least in the sense that rule-skepticism, and particularly constitutional text-skepticism, has become generally obligatory for post-realist accounts of the institution. Third, legal scholarship, in the post-realist era, has been fixed, then, upon discovering bases for moderating the realists' attack and formulating alternative grounds for legitimacy.\n\nThe theory building suggested by the third observation has taken diverse forms. We have defenders of original understandings as a means of confining the Court to the historical roots of constitutional text; advocates of neutral judicial method, most often tied to a preference for judicial restraint, as a counterweight to recognized and accepted judicial discretion; unabashed defenders of one or another moral theory as the basis for enduring values that may in turn be used as measuring sticks for gauging judicial adherence to a limited role; and advocates of structure and process as textually VALPARAISO UNIVERSITY LAW REVIEW\n\nEly describes competing theories as falling within one or the other of two general positions regarding the question of appropriate judicial reference point: the interpretivist and noninterpretivist (or fundamental value) positions. Both, in Ely's view, are inadequate. Interpretivism limits judicial discretion by insisting that constitutional text has discoverable meaning and that judicial decision is legitimate only to the extent that it is traceable to that meaning. It is a plausible approach in the case of many constitutional provisions—a class of provisions in which Ely includes some of the relatively more specific guarantees of the Bill of Rights—but the substance wholly fails in the case of such content-resistant provisions as the privileges and immunities and equal protection guarantees, and the deliberately open-ended ninth amendment. Moreover, a possible interpretivist response to such provisions—that the absence of a readily ascertainable meaning requires that they be ignored—fails to account for the presence of the provisions in the document. Indeed, the provisions seem rather clearly to invite importation of values not otherwise specified in the document.\n\nEly's attack upon \"fundamental values\" simultaneously seeks to demonstrate both that substantive fundamental values are inherently subjective and that a reliance upon them is a prescription for unbridled judicial discretion hopelessly inconsistent with a commitment to representative democracy. Natural law is chimeral; reasoning about morality, although possible, does not produce either consistent results or a basis for choice between moral results separable from personal predilection; history and tradition are too ambiguous to be useful guides; consensus concerning values is better discovered by legislatures than judges; and prophesying future values requires an undemocratic leap of faith. Each such basis for \"discovering fundamental values\" turns out, says Ely, to constitute a disguised means of appealing to the judge's own values; and that \"realistic\" conclusion does not warrant an additional conclusion that the judge's own values should be appealed to. My summary does not, of course, do the argument justice, but I think it adequate to suggest the attractiveness of Ely's claim to reconciliation of representative democracy and judicial veto. The claimed reconciliation is that a judicial review properly focused upon process reinforces representative democracy. The initial questions raised by the reconciliation are two: first, what does Ely mean by democracy, and second, where does process end and substance begin?\n\nWhat Ely means by democracy may only be gleaned by inference, for he fails to precisely define his terms or to explore the rather complex alternatives. It is clear that he rejects pluralism as explanation, at least to the extent that it is inconsistent with his assertions that the majority is often monolithic and that some minorities are excluded from the \"political marketplace.\" He... in both the processes of democratic government and in the government's distribution of benefits.\n\nThe Warren Court was, then, engaged in a judicial review concerned with the process of decision. Participation and representation, although values, are values of process, not substantive values. Such a review is, for Ely, consistent with the overwhelmingly process-oriented nature of the Constitution. It is, moreover, consistent with representative democracy because concerned explicitly with the reinforcement of the processes of representative democracy. And it is well suited to judicial institutions because the isolation of such an institution from the political process permits objective assessment of claims of misfunction in process.\n\nUnder Ely's scheme the Court's appropriate role in interpreting the Constitution's open-ended provisions is that of referee. It is to serve two related functions. First, it is to police the political process by preventing existing holders of power from obstructing that process in service of the status quo. The Warren Court performed that function most clearly in the apportionment cases; and the current Court should continue to perform the function by insisting upon accountability and upon congressional decision where substantial policy issues are in question. Second, because the risk of a tyranny of the majority is inherent in representative democracy, the Court is to prevent representative government from withholding from minorities the protection it affords the majority.\n\nThe risk of majority rule is hardly novel. What is insightful in Ely's contribution to the problem is that he ties his anti-majoritarian interpretation of open-ended constitutional provisions explicitly to his emphasis upon process. Mere political access for minorities is, for Ely, insufficient, for political access is an inadequate counterweight to the prejudice of the majority in both the senses of prejudice Ely postulates: outright hostility and unconscious gen. recognizes that government by bureaucracy is inconsistent with political accountability and urges more democracy as a cure; so it is clear at least that legislative bodies are to decide policy. It is clear, finally, that majority rule is to be at least generally respected! But Ely's version of the means by which the majority asserts its will through representative bodies is at best unclear. The mechanism appears at times to be in Ely's view relatively direct, in the form of the vote or of an identity of interests, and at times to be in his view wholly psychological-in the sense that the legislator reflects the foibles of his constituency. I do not question the proposition that majority rule is a value to be preserved. I do, however, question Ely's view of the mechanism of majority rule. When Ely argues that policy decisions should be made by Congress rather than the bureaucracy and that obstacles to access to the machinery of political power should be judicially invalidated, he at least implicitly assumes that majority rule means some version of the present, observable, and textually ascertainable system of political decision. That assumption I think warranted, however questionable the proposition that it is the majority that rules by means of that system. The political system is at least a system susceptible to popular influence; the reforms he advocates would make it more so, and Ely is right in suggesting that the Court is less susceptible to such influence. But Ely also seems to think that the majority rules by Weltanschauung-by the world view it shares with its representatives. I think it quite legitimate for a sociologist or a political scientist to postulate Weltanschauung as phenomena and even legitimate for a Court to take judicial notice of the hypothesis, but I am at least skeptical of the proposition that the Supreme Court, by relying on the proposition, may formulate a picture of the operation of government that will enable it to distinguish legitimate and illegitimate anti-majoritarian claims. I intend to explore my skepticism, by way of example, shortly, but it is first necessary to answer the second question I have asked. 1981\nDEMOCRACY AND DISTRUST 645\n\nEly distinguishes judicial enforcement of equal concern and\nrespect from judicially imposed substantive result by emphasizing a\njudicial analysis carefully limited to the identification of prejudice,\nand then only for the purpose of preventing distortion. Prejudice is\nnot to be precluded because prejudice is, in the Court's judgment,\nimoral or unjustified.52 It is to be precluded, rather, because the\nrelevant right is a procedural right to equal concern and respect.53\nWhere the majoritarian political process is hostile to a minority and\nseeks therefore to harm, its objective is illicit because it has not\nequally valued the minority.54 Where the process acts under a misap-\nprehension about a minority, its objective may be licit and substan-\ntial. But the majority cannot be permitted to achieve the objective\nbecause the misapprehension constitutes a mistake in valuation of\nthe minority.56\n\nJudicial concern with prejudice limits judicial discretion in in-\nterpreting open-ended constitutional provisions by making only pre-\njudice relevant. Prejudice is, however, an issue of \"process\" only\nin the sense of concern and respect. Process is, under the\ndefinition, a great deal more than formal procedure or even of for-\nmal access to procedure.\n\nI have no difficulty in principle with the definition. A litigant's\nright to an unbiased judge and jury may legitimately be labeled a\nright to a particular process, and, although a neutral and detached\nlegislature is surely a fanciful notion, an unprejudiced one may with-\nout difficulty be thought a procedural ideal.56 My difficulty, rather, is\nwith Ely's apparent belief that the analysis he advocates as flowing\nfrom the definition somehow precludes judicial tampering with\nsubstantive results for substantive reasons.\n\nEly's claim that the Court's legitimate concern is with process\nand not with substantive policy is not a claim that his theory is\nvalue free. Ely is advocating, however, textually ascertainable\nvalues, and ascertainability is the basis for his further claim that his\nvalues are superior to the competing values he derides. Upon the\nassumption that process - and more particularly equal concern and\n 646\nVALPARAISO UNIVERSITY LAW REVIEW [Vol. 15\n\nrespect - is the predominant constitutional principle, the Court may\nreason from that principle. If the Court's reasoning is sufficiently\ndisciplined in the sense that it is true to the principle, it has a\ndefense to the charge of judicial license.\n\nBut the defense is dependent upon more than the accuracy of\none's identification of predominant principle and the discipline with\nwhich the principle is manipulated; it is dependent, as well, upon the\nbreadth of the principle and the Court's ability to find the facts\nnecessary to its application: The more abstract the principle, the\nmore license the Court has to overrule the political process in ser-\nvice to the principle; the more intractable the facts necessary to a\ndisciplined application of the principle, the more likely it is that the\nCourt's preferred result will influence its characterization of those\nfacts.\n\nEly's emphasis upon prejudice may be viewed as an attempt at\navoiding the first of these difficulties by making equal concern and\nrespect more concrete. It does, in degree, but in so doing runs\ndirectly into the second difficulty: prejudice is not a \"fact\" easily\nfound. It is, indeed, not a fact at all but a characterization, and a\ncharacterization itself dependent upon value judgments which\ndistinguish between justified and unjustified generalizations and\nbetween instances in which generalization has occurred and in-\nstances in which it has not. In specific terms, those judgments are\nessential to determining who has and who has not been represented\nin the political process and to determining who has and who has not\ndone the representing.57\n\nThe fact that characterization is difficult is not necessarily a\nreason for rejecting an analysis dependent upon characterization.\nThere are, of course, data on the basis of which judgments may be\nmade. But difficulty in characterization does suggest caution, and\nsuggests particular caution where one wants not to make general\njudgments about the likelihood of prejudice but wishes, instead, to\nmake rather precise judgments about the likelihood of prejudice.\nThe irony in that cautionary note is that general judgments -\njudgments that are over-inclusive in the sense that they preclude an\n\n57. With respect to the charge of value imposition generally, see Gareth,\nBook Review 42 U. PITT. L. REV. 35, 42-44 (1980); Lynch, Book Review 80 COLUM. L.\nREV. 855, 862-64 (1980); O'Fallon, Book Review 68 CAL. L. REV. 1070, 1083-84 (1980);\nTribe, The Puzzling Persistence of Process-Based Constitutional Theories, 89 YALE\nL.J. 1063, 1076 (1980). But see Cox, Book Review, 94 HARV. L. REV. 700, 709 n.19\n(1981). 1981\nDEMOCRACY AND DISTRUST 647\n\nentire category of government conduct on the ground that some\npart of the conduct is illicit - leave less room for judicial policy\npreference than a precise judgment that purports to reach only con-\nduct that is in fact illicit.\n\nIt is precision Ely demands. He is willing, in an effort, I think,\nto avoid an overinclusive judicial veto, to characterize some govern-\nment conduct as unprejudiced even where it may be prejudiced. In\nso doing, he risks an underinclusive judicial veto, a risk made\nt troublesome, I submit, by the difficult and value-laden nature of\ncharacterization.\n\nWhat is the justification for accepting the risk of underinclusiveness? It is, presumably, that the risk gives the benefit of the\ndoubt to the majority. That is bad news if one believes that the\nelimination of prejudiced decision is primary; but the elimination of\nprejudice is not, as I view Democracy and Distrust, Ely's sole objec-\ntive. At least one of Ely's primary objectives is preservation of ma-\njority rule. His concern with prejudice is, at least on occasion,\nsubordinate; so subordinate that he may be read as concerned in\nfact only with the efficiency of majority decision making in the\nsense that undervaluation of the minority produces an inaccurate\ncost-benefit balance.68 On occasion, however, it is not on all occasions,\nand I am aware that Ely may be read quite differently. Indeed, Ely's\nadoption of the equal concern and respect principle may be viewed\nas overwhelming majority rule. But I think that view deemphasizes\ntoo much Ely's preference for decision by politically accountable in-\nstitutions of government, and I will attempt to illustrate what I\nbelieve to be the influence of that preference shortly.\n\nSOME RESERVATIONS\nIt is perhaps time to tie these strands together, but I want to\npreface the attempt with a caveat. Much of what follows is a criti-\nque of Ely's application of his theory to concrete issues. Ely\nrecognizes that a theory of representation and participation may, in\ndifferent hands, produce differing results. To the extent that my\ncritique criticizes application, it does not, then, challenge the theory. 648 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 15 directly. It is nevertheless my hope that the critique does suggest 'something about the theory—that its reconciliation of majority rule and judicial veto is not, and cannot be complete.\n\nI have suggested three reservations about Ely's theory. First, Ely's version of the meaning of 'majority rule' includes a notion of shared world view that I believe leads him to inappropriately evaluate bureaucratic decision as if it was legislative decision and to oversimplify the dynamics of government process by relying upon group status as an explanation of that process. Second, Ely believes that the court is capable of accurately identifying prejudice and of assigning it as the cause of some substantive results and not of others without running a substantial risk that judicial policy preference will play a significant role in the assignment. I am skeptical of that claim and think it at least possible that such judicial preferences would be better left in the open. Third, Ely, despite his evident willingness to uphold antMajoritarian claims to prejudice-free decision, nevertheless insists that majority rule takes precedence, in the sense, at least, that the risk of judicial error in identifying prejudice is allocated to the minority. I confess some value-laden disappointment in this result, but believe the more relevant criticism to be that Ely has not made clear what he means by his theory and believe is essential—that his concern with process is not limited only by its own logic, but is limited, as well, by countervailing (and unfortunately unexplored) principles. I will attempt to illustrate these doubts with three of Professor Ely's arguments: that the benign consideration of race is not suspect; that sex, if used as a contemporary basis for decision, is not suspect; and that a government failure to provide for the poor is not suspect. 649 1981] DEMOCRACY AND DISTRUST always at least presumptively illicit. The task is only that of finding the basis. The justification for characterizing some grounds for decision illicit may be conceived as moral and therefore inconsistent with Ely's concern only with process, but that justification is not the sole justification available for inquiry in the weak sense. One may as easily suggest that the justification is prophylactic: some bases for decision reflect, more often than not, process tainted by prejudice, and are, therefore, to be prohibited altogether. Inquiry in the weak sense risks, then, overinclusive judicial veto; the value it makes primary is unprejudiced decision.\n\nEly's claim, however, is that the Court should engage in an inquiry into motive in the strong sense, using motive as a scalpel. 650 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 15 rather than as the blunt instrument of prophylaxis. The Court is to separate a decision that is the product of hostility toward or an overbroad generalization about minorities and made on the basis, for example, of race from a decision untainted by either of these forms of prejudice but made, as well, on the basis of race. For Ely, the 'suspect classification' notion is a tool designed only to identify decisions likely to have resulted from prejudiced process: a racial classification that adversely affects a minority historically the object of hostility or of generalization is suspect because our experience tells us that the classification is likely to be the product of a tainted process. A racial classification that adversely affects the majority is not suspect because the risk of prejudice is substantially less: a majoritarian process is not likely to disadvantage members of the majority through either hostility or ignorance. The difficulty with inquiry in the strong sense is, I submit, that it risks underinclusive judicial veto; it risks prejudice in its effort to preserve majoritarianism.\n\nAlthough Professor Ely recognizes that the competence of an administrative body to adopt racial preferences under an affirmative action plan is itself an issue, he suggests that such a preference is not 'suspect' because a government decision maker in a society dominated by whites has presumptively neither sought to harm nor discounted the human value of whites adversely affected by the preference. What is missing from Ely's analysis, however, is a critical examination of the relationship between the character of the institution making such a decision and the motive inquiry he advocates. 1981\nDEMOCRACY AND DISTRAST\n651\nThe hypothetical assumes an institution not itself politically responsible. In what sense, then, may it be said to represent the majority? Apparently, only in the sense of a judicial assumption about the probable prejudices of the decision maker\"—an assumption that apparently requires judicial identification of the race of the decision maker. Aside from my distaste for that prospect, the analysis assumes that representation of the majority, and non-representation of the minority, is a matter of the racial memory\" of the decision maker—an at least uncommon definition of representation and a definition suggesting the majority rule by Weltanschauung characterization I made here earlier.\nWhat grounds are there for an assumption that the government institution in issue in fact does represent the majority—even in the sense of racial memory? Recall that our concern here is that the institution’s decision be unprejudiced. By the criterion of that concern, the institution may not miscalculate the value of those majority persons adversely affected or of the minority persons favored by the preference it adopts. Are we justified in assuming that the potential for prejudice is exhausted by an assumption about the race of the decision maker? I think not—not even if it is assumed that the “majority” may be adequately defined so that there are subgroups of the white majority whose interests are sacrificed by white decision makers through prejudice. 652\nVALPARAISO UNIVERSITY LAW REVIEW\nVol. 15\nThe difficulty is that Ely assumes a judiciary capable of making accurate and, as a matter of substantive result, neutral distinctions in analyzing motive. That assumption is grounded upon a peculiarly narrow view of prejudice and of the capacity of race to generate prejudice\"—a view that relies upon the group status of the decision maker. If the relevant group status—that is, the group status that will trigger judicial suspicion—is arguably derivable from historical experience, but historical experience is not unambiguous. If historical experience indicates anything about race, it is that race is too volatile a consideration to be neatly limited by generalization. If human psychology is to be a guide to decision, what is needed is a judicial sensitivity to the complexity of human psychology and, therefore, judicial modesty\" about judicial capacity to fine-tune characterizations about the process of decision. Fine tuning relevant group status, one suspects, and I think not unfairly, too easily becomes a matter of one’s substantive policy preference.\nIf Professor Ely’s notion that the institutions of government reflect the domination of the majority has validity, its validity lies in 1981\nDEMOCRACY AND DISTRAST\n653\nthose institutions in which the majority’s political representatives may be found. I think that the judiciary is entitled to precisely parse motivation in reviewing a congressional decision and that motive inquiry in the strong sense is therefore appropriate—at least as a matter of deference—in reviewing congressional decisions. It is, after all, democratic decision that Ely’s theory purports to protect from the Court, and congressional decision would seem to have the strongest claim to that protection. It is at best very difficult to see why shared Weltanschauung warrants similar protection for any bureaucracy. Motive inquiry in the weak sense is a far safer approach to review of bureaucratic decision, and one that serves the procedural goal of forcing decision by a politically representative body.\nSex as a Suspect Classification\nProfessor Ely’s argument that sex should not generally be a suspect basis for decision is that although sexual classifications are often stereotypical, it is difficult to conclude that the access of women to the processes of government is now blocked either directly, through hostility or indirectly, through ignorance. 654\nVALPARAISO UNIVERSITY LAW REVIEW\n[Vol. 15\nProfessor Ely's answer to the question is, at least to me, ambiguous, for it is not clear whether he is skeptical about the influence of prejudice or thinks it irrelevant. Ely first argues that the answer has something to do with the nature of the prejudice involved:\n\nA case like that of women, where access was blocked in the past but can't responsibly be said to be so any longer, seems different. . . . In cases of first degree prejudice, or self-serving stereo-typing where the disadvantaged group remains blocked, the alternative of \"remanding\" the question to the political processes for a \"second look\" would not be acceptable: we don't give a case back to a rigged jury. Here, however, such a \"second look\" approach seems to make sense.87\n\nAssuming that the legislature takes a second look and confirms its earlier decision, what is different about the reenacted classification that adversely affects men and the original classification that, although it too adversely affected men, was the product of an era in which a stereotypical view of women was dominant? Ely's answer, apparently, is the absence in the former case of the dominant stereotype: the \"prejudice\" that produced the original classification is not present in the case of the reenactment for reasons at least analogous to those which validate benign racial preferences.68 The Supreme Court's answer is not dissimilar: at least some sexual classifications that adversely affect men are not stereotypical classifications, they are remedial classifications.89\n\nBoth answers assume a judicial ability to identify stereotype—that is, to determine whether prejudice did or did not influence current decision—without reliance upon the fact that de-enactment in both instances was founded upon sex. Indeed, Ely appears to go even further: date of enactment is a sufficient proxy for prejudice, so we may ignore the risk of prejudice in contemporary enactments.\n\n87. J. ELY, supra note 1, at 169.\n88. Id. at 167, 169. Ely is, however, not entirely clear on the point. He may be read as suggesting only that the political power of women excuses prejudice, but his emphasis on determining whether the access of women to the process of decision is \"blocked\" suggests an inquiry into prejudice. Id. at 167-68. See note 103 infra.\n89. Compare Califano v. Webster, 430 U.S. 313, 317 (1977) with Califano v. Goldfarb, 430 U.S. 199, 221-22 (1977) (Stevens, J., concurring). 1981]\nDEMOCRACY AND DISTRUST\n655\nCan we have confidence in the Court's ability to identify stereotype? I am inclined to answer no, but to grant the same deference to congressional decision in the sexual context I would grant in the racial context.90 I am inclined to doubt the Court's capacity in part because the Court's reluctance to label sex \"suspect\" suggests not that prejudice is absent from contemporary sexual classifications, but rather, that prejudice is inseparable from values it wishes to preserve.91\n\nThe fact of the matter is that significant numbers of men and women view some sexual classifications—even some stereotypical sexual classifications—as legitimate.92 Sexual classifications are not suspect in the sense of automatic invalidation because many of us (or, at least, many judges) wish to retain some sexual stereotypes—particularly those reflected in heterosexual values94—and suspect means would make retention difficult. The Court must weigh such circumstances weigh those values against the risk of prejudice. The\n\n90. See text accompanying note 83 supra. What then, would I do about noncongressional, sex-based decision? A prophylactic standard is attractive, both by analogy and from the standpoint of judicial administration. See Rutherglen, Sexual Equality In Fringe-Benefit Plans, 65 Va. U. L. Rev. 219, 248-56 (1979). The difficulty is that I, too, am prone to a value orientation, at least in the sense that I do not think courts can or should eliminate all sexual distinctions. See id. at 213-16, 228-31. My inclination to distinguish between racial and sexual classifications may be explained in terms of distinctions in perceived risks (and, therefore, in terms of distinct forms of prejudice or judgments about prejudice in much the same way Ely seems to advocate) or in terms of competing values, see notes 91-94 infra and accompanying text, but I suspect the latter is the more accurate explanation and the former at least arguably a rationalization. 656\nVALPARAISO UNIVERSITY LAW REVIEW\n[Vol. 15\nprice paid for retention is the continued possibility of prejudice—counterbalanced I think, to an unknown extent by the political power of women.\n\nA similar price for a dissimilar reason, I submit, is paid in the case of remedial sexual classification: despite assurances that stereotype is not present in the case of legislation enacted to overcome the effects of past discrimination, it is not clear to me that such a remedy is the product of a paternalism meaningfully distinguishable from the paternalism that protected women in earlier eras.95 We are not entitled to be confident that reenacted, or newly enacted, sexual classifications are free of prejudice90 even if we conclude that the Court should defer to congressional decision or to countervailing values.\n\nBut the argument that we cannot be certain that prejudice is absent in contemporary sexual classification is apparently not an argument that bothers Professor Ely, for he also contends that a contemporary sexual stereotype is a matter of judicially untouchable substance and therefore not the appropriate subject of judicial review.97 The argument seems to be that sexual stereotyping is permissible where the victims of the stereotype have sufficient clout to prevent it, however \"wrongheaded\" their failure to prevent it.\n\nIf stereotypical classification is now a matter of substance, what distinguishes sexual stereotype from racial stereotype? Presumably, it is Ely's judgment about relative clout, but I think it. possible to question that judgment and the Court's ability to make it. The political clout of racial minorities is, as Professor Ely recognizes, difficult to deny. The monolithic character of majority opposition to racial minorities in the political process is, despite Ely's suggestions to the contrary, difficult to swallow. Neither of these observations invalidates the belief that race-motivated decision is likely to reflect prejudice, but both make judicial guesses about clout tricky matters. Moreover, the fact that women out-number men does not warrant a conclusion that women have sufficient clout to overcome prejudice, and the fact that there is a current and widespread public debate concerning the role of women does not warrant an obituary for chauvinism. The complexities of the political process are far greater than Ely seems to suppose. I think Ely supposes that the political process is less complex than I believe it to be because he apparently conceives of the right at issue as the right of a minority group to unprejudiced process, and that conception - if one assumes that groups act cohesively - simplifies substantially one's task in explaining political behavior. It may be that I am misconstruing Ely's conception, for the right to unprejudiced process may be the majority's right as well. Indeed, the right may not be so much a right as a claim to be considered in evaluating the countervailing claim to majoritarian decision. But Ely's analysis does treat the power of the minority as if the minority was a cohesive entity whose claim to unprejudiced decision is to be discounted by its power as a cohesive entity. My problem with judicial measurement of clout turns out, then, to be not dissimilar to my problem with judicial measurement of prejudice: the assumption I think erroneous in both instances is that the group behaves as a group. It is of course the case that the prejudices with which Ely is concerned is inherently a group-directed phenomena. But that concession does not, it seems to me, warrant the conclusions that group status defines both the locus of prejudice and the locus of the clout needed to counterbalance prejudice. In the case at least of clout, it is individuals who will seek to overcome prejudice, and I see no evidence that would warrant a conclusion that these individuals may assume the clout of others who share their group status. It may be objected that my doubts about the Court's ability to make judgments about the presence of prejudice and about relative clout, and my preference for prophylaxis in at least the case of non-congressional judgment founded upon race indicate that I am straying from Ely's premises: It is the potential for prejudice I want the Court to identify and eliminate; Ely is concerned with prejudice to the extent that it actually causes inefficient processes. Perhaps I am injecting my values into the mix, but the clash of my values with Ely's reliance upon groups as the building blocks of his theory may at least serve to clarify what I take to be the limits of that theory. Because I view any right to untainted process as the right of individuals to such a process, I am disinclined to assume that group clout excuses the risk of prejudice. Ely seems quite willing to take that risk. The interesting question is why. I suspect that the answer lies in my earlier suggestion that the right to untainted process may not be a right at all. It may be, rather, in the nature of a claim to be given weight, but not controlling weight. That is the case, Ely may be giving controlling weight to a majoritarian principle, at least in the sense that the judiciary's effort to achieve untainted process cannot be permitted to too directly threaten that principle. An emphasis upon groups oversimplifies, as I have argued, both prejudice and clout. But if I am right in suspecting that Ely wants to avoid the possibility that prohibiting prejudice will overwhelm majoritarianism, the oversimplification permits sufficient maneuvering room in which to avoid it. Judgments about relative clout, in the absence of any objective basis for measurement, are judgments easily informed by a cautionary concern with majoritarian values. That concern may be well and good if one views majoritarian values primary, but it would seem desirable that they be articulated directly and not left in the unstated substructure of a judicial opinion purporting to objectively assess clout. Wealth As A Suspect Classification Professor Ely concludes that wealth is not a suspect classification both because government failures to provide for the poor are motivated more by parsimony than prejudice and because a failure to provide goods and services is not often a problem of classification at all. My initial difficulty is in the potential use of Ely's analysis to come to a precisely contrary conclusion. Indeed, Professor Michelman, albeit apparently without the benefit of Democracy and Distrust, has done precisely that on the basis of Ely's earlier exposition of his theory in the law reviews. For Michelman, constitutional rights to the basic ingredients of individual welfare are \"transtextual rights\" which would reinforce representation and ensure participation. Ely's analysis postulates, as I have said, two fundamental process values - participation and representation. His analysis of prejudice may be viewed as flowing from the latter. Ely's conclusion that poverty is not a suspect classification that threatens, through prejudice, representation, is therefore not necessarily a rejection of a positive right to welfare as a necessary condition to participation. Indeed, Professor Ely does not address the latter question. makes the right dependent upon some initial government action as a triggering mechanism116—a dependence at least suggestive of an equal protection analysis.117\n\nThe interesting question arising from the differences between Ely's view of poverty and Michelman's view of poverty is why Ely addresses the question only in the context of prejudice. I suspect, with the caveat that my suspicion is mere speculation, that it is because Ely views the question only as one of classification on the basis of wealth: Absent some rather clear government conduct generating a classification founded on wealth,118 there is no possibility of a welfare right. I confess that I am disappointed that Ely has not told us why there is no such right. Although I think such a right should not be recognized, I don't view Michelman's argument from Ely's participation value unwarranted.\n\nBoth Professor Ely's express conclusion that poverty is not a suspect classification and my speculation about the reason for his failure to discuss positive rights to welfare suggest, it seems to me, that participation and representation are in competition in Ely's scheme with his expressed but not adequately explored preference for majoritarianism. Ely, as I have stated, concludes that poverty is not suspect in part because parsimony, not prejudice, is the more probable motivation for a legislature's refusal to legislate. How do we know that some proposal to alleviate the plight of the poor is defeated merely because the legislature is unwilling to expend funds (and to impose the taxes needed for the funds)? Certainly political rhetoric about the indolence of the poor (or, at least, of the unemployed) may be described as \"self-aggrandizing generalization.\" We do not know that prejudice is absent; Ely merely prefers, again, an underinclusive judicial veto. But I do not think this is the main reason poverty is not suspect. The main reason is the second reason Ely provides: There is no classification.\n\nClassification, however, is a term of art. A legislature's refusal to fund a minimally adequate education while funding a municipal concert hall generates a type of classification; it is merely not the sort of classification the courts are likely to treat as a classification under equal protection doctrine. The reason poverty is not suspect, then, is not so much a matter of classification as a matter of the distinction between a court overruling and a court compelling legislative action.119 Underlying the distinction between negative and positive rights is a set of values at the heart of which is, again, majoritarianism as a limitation upon judicial role.120\n\nEly's failure to discuss the possibility of affirmative welfare rights is I think explicable on a similar basis, at least if one is tolerant of my speculation. A judicial recognition of welfare rights would, as Professor Michelman argues, further participation in the process of democratic decision, but such rights would fly in the face, as Michelman at least partially recognizes, of the values expressed by the negative rights—positive rights dichotomy.121\n\nAs I agree that that dichotomy must be preserved, one may legitimately ask what my reservation is. It arises from my perception that the majoritarian preference in Ely's theory influences and limits his characterizations about prejudice, his understanding of the political process, and his evaluations of the minorities entitled to claim special judicial protection.\n\nEly's claim, I repeat, is that there is no tension between democracy and a process untainted by prejudice because an insistence upon the latter reinforces the former. But there is a tension, I submit, between majoritarianism and untainted process—a tension I think Ely often resolves by evaluating threats to untainted process in the unexpressed light of the consequences the evaluation would have on majority rule—a majority rule apparently defined at least operationally as the fact that decision was reached by the political branches of government.\n\nI earlier suggested that Professor Ely fails to explain precisely what he means by democracy, but that his view of the concept clearly includes the majoritarian value.122 Ely's argument that his analysis of prejudice reinforces democracy may be viewed, however, as suggesting a definition of democracy: democracy is that system in which majority rule is fettered only by the sensitivity to risks of prejudice and to obstacles to participation Ely prescribes.123 If I am right in my view that the majoritarian value acts as a brake in the drive for untainted process, this definition is not, however, quite accurate. Rather, democracy is the system that results from a balancing of the majoritarian value and untainted process—a balancing presumably requiring a guess about appropriate accommodation.\n\nIf I am right in thinking Ely is engaged in balancing, what is wrong with such a balancing? Both of the weights on the scales may be viewed, after all, as values of \"process.\" I think there is nothing wrong with it. Indeed, I think it essential. What seems wrong with Ely's analysis of prejudice is that the need for rather constant accommodation is unexpressed. What seems wrong, moreover, is that it is not merely ascertainable values of process that are elements of the accommodation. The problem is not merely the notorious difficulty of distinguishing substance from procedure124—although that difficulty is surely illustrative as analogy.125 The problem, on the pre- judicial side of the scales, is that a court though capable of deciding whether a minority interest has been undervalued in the political process (even undervalued through prejudice) is very likely to go about deciding that question by reference to what it believes would be an adequate valuation of that interest. The problem, on the majoritarian side of the scales is similar. Some judicial valuation of the majority's interest (even if we define the majority operationally as the decision reached by existing political process) is, it seems to me, inevitable.\n\nSuch a valuation is at least probable in practice because the majority's interest—the public purpose served by challenged legislation—is a relevant consideration in assessing prejudice in Ely's scheme. I think it inevitable, however, because a court that weighs the value of majority rule must have some understanding of the meaning of majority rule. A meaning limited merely to the fact that decision was reached by the political system (even if the definition of that system is limited to the legislature) amounts to no more than the standard presumption that what the system has done is legitimate, and that seems an inadequate meaning.\n\nEly's major claim, I think, is that it is an adequate meaning. I am contending that Ely's analysis of prejudice is influenced, through something like a balancing technique, by a felt need to preserve majoritarianism. I think that Ely would deny my contention because I think he believes that misfunction in process is, at least in substantial degree, objectively observable. Since he believes misfunction to be observable, he can assume that democratic decision is decision reached by the political system and can conclude that the only proper inquiry is inquiry into misfunction. Legislative cost-benefit balances are not, on these premises, second-guessed by the Court, they are assumed. If I am correct, however, in claiming that a misfunction characterization is itself influenced by the majoritarian value, second-guessing (even if deferential second-guessing) is precisely what is going on. Moreover, second-guessing is, if I am correct in believing that misfunction is not easily observed, essential. I have argued that prejudice characterizations are necessarily matters of judgment. Such a judgment requires, I think, an evaluation in particular cases of the substantiality of the majority's claim to the exercise of its prerogative. It may be preferable to frame the inquiry as an inquiry into misfunction, for such a framing channels and narrows the analysis, but it is not in my view an inquiry that can deny a judicial assessment of the weight to be assigned the majority's claims.\n\nCONCLUSION\n\nI began this review with three premises to which I would like briefly to return. The purpose was to suggest that there is, indeed, a rationale needed for judicial overruling of democratic decision; that the aspect of legal realism which was essentially right (even if essentially self-evident) and that has therefore survived at least as premise is that reliance merely upon constitutional text is not and cannot be what goes on in the Justices’ chambers; and that these premises require, because they are ultimately in conflict, some substitute for text. Has Professor Ely provided us with an acceptable substitute?\n\nDespite my reservations, I think that he has provided us at least with an acceptable direction. Many of those reservations are about particular applications of his theory reflecting, I hope, differences in judgment. Differences in judgment are not precluded by Ely's theory. My main reservation—that the analysis Ely advocates cannot preclude a judicial weighing of conflicting interests and conflicting principles and that the weighing should not be camouflaged—is, I suppose, a kind of realist’s reservation, but it is not a reservation that denies the relevance of principle or principle’s. potential for significantly influencing decision. The very considerable value of Ely's contribution, at least if his theory is not viewed as panacea, is that it invokes principles that speak rather directly to the dilemma of judicial review in what purports to be a representative democracy. Even if those principles turn out only to serve as cautionary boundaries to the role the Court conceives of itself as playing, they are to me a welcome relief from the view that the boundaries of that role are to be found through an unfettered examination of the substantive values that compete for the Court's favor.\n\nPaul N. Cox†\n\n*Assistant Professor of Law, Valparaiso University School of Law. Although the opinions expressed here are mine, I wish to thank my colleagues John Farago and Matthew Downs for their comments and helpful criticism. Responsibility for error is, of course, mine as well.