Juridical Democracy's Failure
The recent news about the striking down of last year’s health care reform reveals the problem of what political scientist Theodore Lowi has termed “juridical democracy.” Lowi’s hope was that a society that settled its disputes through the Court system could advance public interest politics out of the reach of the interest group pluralism that currently controls governing decisions in both the legislative and executive branch.
Interest group pluralism is the view that there exists no such thing as a defensible public choice system beyond legitimizing rules that are neutral between private interests. As long as the rules for settling our political scores with one another are neutral, says interest group pluralism, then the interest groups that win in our political system are likely to be representative of the interests of many. There are many criticisms of this view, but the main criticisms of the view center around interest group liberalism’s (1) inability to plan for the long-term (2) disenfranchisement of those who cannot mobilize resources (3) Disinterest with the correctness of the decisions it makes.
Lowi had hoped that juridical democracy would ensure that there was still a place in our government where everyone receives a hearing and where decisions were made on the basis of deliberation interested in reaching correct outcomes.
The reason that today’s news is indicative of failure is not because of the content of the decision itself, but because it is clear that the judiciary is handling the question of whether or not the health care reforms are constitutional in an entirely partisan matter. Regardless of your views on the legality of the reforms, or their desirability, it is clear that the our Courts have been “got to” by interest group pluralism.
The increasing demands for the election of judges (and their expensive campaigns with unlimited contributions post Citizens United), highly partisan judicial appointments, the constant cycle of holding up judicial appointments, the increased attempt to focus public pressure on “judicial activism” when cases protect societal underdogs — whatever it means for the content of any particular case, it appears generally that the judiciary cannot be trusted as a deliberative body in the way Lowi imagined. Which would mean, at least on Lowi’s view, that the American democratic principle is now fully overrun by faction.
