Courts and Domination: A Conversation with Ian Shapiro

Shi Cheng Lim – Singapore

People often worry about democracy’s susceptibility to the tyranny of the majority. The phrase refers to the possibility that the majority in a democratic state will vote to pass laws that favour them and harm the rights of minority group(s). To guard against this possibility, many countries have given courts the power of judicial review. This power enables courts to interpret, evaluate, and potentially strike down laws that violate constitutional protections for individuals and minority groups. But in the last half-century, political theorists have begun to believe that courts with judicial review don’t protect minorities. And if courts fail to protect minority interests, concerns about the vulnerability and domination of minorities arise.

One theorist who grapples with these problems is Professor Ian Shapiro, who is currently Sterling Professor of Political Science and Henry R. Luce Director of the MacMillan Center at Yale University. His forthcoming book, Politics Against Domination, makes the case that politics should aim to prevent domination and that from this perspective, courts and other extant institutions have been largely ineffective.

Many theorists worry about the tyranny of the majority, and courts are often seen as a way to prevent such tyranny. Have courts historically fulfilled this function?

Well, what the evidence shows is that the main feature that limits that is having a democracy. Authoritarian regimes tend to ignore what courts do. So the question is whether there is any additional value added by having courts on top of having a democracy, and then we’re talking about countries like the US where there is little evidence to support the proposition that courts protect minority rights.  If you look throughout American history, for example, the Slaughterhouse cases or the Korematsu detention of Japanese-Americans during World War II or if you go back to the Antebellum era, by and large, the courts go along with majoritarian sentiments and don’t push back against majority rule in favour of the minority.

Beyond the United States, are there other democratic contexts where the role of courts may differ, leading courts to actually protect minority or individual rights?

There are new democracies that have created independent courts. So, for example, if you look at South Africa, they created an independent judiciary, and they have judicial review of what the government does, but again the judiciary largely goes along with whatever the ANC government wants. They have a constitutional right to healthcare, but there was a landmark case of a person dying of kidney disease. He was trying to get dialysis and wanted the court to order dialysis because there was a constitutional right to healthcare. And the court just refused, saying that they can’t get involved in budgetary matters. People always talk about courts as though they’re going to check tyranny of the majority, but where are the examples of a court that’s actually done that? Very difficult to find any.

Well in the US context, there were decisions by the courts to protect flag-burning as free speech—a decision that was quite controversial at the time. So there do seem to be some instances where the courts defend an unpopular minority. How do you interpret these instances?

My impression is that there’s never been a strong majority in the U.S. Congress for outlawing flag-burning. And it’s very difficult to study it empirically because sometimes what you will find is that politicians will take symbolic positions on the issue. Some years ago, when flag-burning laws were passed in Congress, if you had gone and interviewed people, you would have quickly learned that many of the Congressmen and Congresswomen who voted for that law knew that the Supreme Court would strike it down, so they were essentially just position-taking. And indeed the Court struck it down 9-0, which was completely uncontroversial, and when they struck it down, you didn’t hear anybody in Congress calling for a constitutional amendment to reverse what the Court had done. The only instances where you hear that are, I think, areas where the population is really deeply divided. Like abortion, for example, where the American public is deeply divided. There, I think politicians get a lot of mileage out of saying that there needs to be a constitutional amendment and so on.

But you can’t really label that as the tyranny of the majority because it’s not clear who the minority or majority is. It’s just one of those issues where the public is deeply divided, and no matter which institutions make the decision, it’s going to be controversial. And certainly if you construe it as protecting women’s rights to abortion, it’s not clear that the US practice, where the courts did get involved, is much different than in Japan or in Britain where there hasn’t been judicial activity on this at all.

So I think on most controversial social issues, what goes on in the courts just pretty much reflects what’s going on in the general population. Judges, by-and-large, are pretty conventional people, and they get selected for being pretty conventional people. All the data from political science studies show that when they stray from judicial mandates, it’s usually in the direction of public opinion—not away from it.

I realize this isn’t a case where the courts defend minorities, but I want to question whether courts simply fall into the political mainstream of their times. During the earlier years of President Franklin D. Roosevelt’s administration, the courts struck down many New Deal laws. Is this conduct an aberration in the historical record of courts following contemporary politics? Or can this conduct be interpreted as following the political mainstream?

Well, a lot of the Lochner court people had been appointed by the previous administration, before FDR, and they certainly didn’t think of themselves as protecting minority rights. They saw themselves as protecting commerce; much of what they did was in the name of the Commerce Clause.

And besides, by and large, the majority of the New Deal survived. Even the National Industrial Recovery Act, which they did strike down, was already very unpopular in Congress, and the administration had abandoned much of it by the time the Court acted. Ira Katznelson’s book Fear Itself covers this, and it’s really quite persuasive. There was already a lot of buyer’s remorse in Congress over what had been passed in 1933-1934, and they were already cutting way back on the Wagner Act themselves in the deployment of enforcement in the South. So I don’t think this is a very good example of the Court pushing back and even to the extent that it did, it certainly wasn’t about minority rights.

So given this historical record of courts failing to protect individual or minority rights, are there any changes you could prescribe for court systems that would enable them to be effective guardians of these rights?

Yes. To begin, I’m not a big fan of judicial review in the first place, so when countries are rewriting constitutions, my advice is always to keep it to a minimum. But when you have it, as the US does, I’m a big believer in that when courts act, they should act in ways that reinforce the democratic process. So, for instance, I think that Brown v. Board of Education was a much better decision than Roe vs. Wade because in Brown they basically said, “Separate but Equal cannot stand,” and then they said to state legislatures, “you go back and figure out something else and then we’ll tell you whether it’s constitutional.” By contrast, in Roe v. Wade, Justice Blackmun sat down and basically wrote a statute himself, detailing what’s allowed and what’s not in the first trimester, second trimester, third trimester, and so on. I think he thought that he was solving a problem, but in fact, I agree with those who say that he was pouring gasoline on the social conflict over abortion. So it would’ve been better, if the court was going to do anything, to just say that this Texas abortion statute is too intrusive and cannot stand and send it back to the Texas state legislature to do something else.

I think that to the extent that courts start legislating, they lose legitimacy. So my view is that they should at most play a reactive role and send issues back to legislatures, forcing the democratic process to continue.

But if courts just follow democratic tendencies of their time, and we, therefore, limit the role of the courts to simply pushing issues back into the democratic sphere, are there any institutions that would actually protect individual and minority rights?

Well, I think when you’re talking about institutional design, you’re by definition talking about a world of the second-best. There are no perfect institutions, and everything is about trade-offs. So in other words, you’re never going to come up with any institution that never produces bad outcomes from the standpoint of your philosophy. You have just to take that as a given.

Now, when you’re thinking about courts enforcing constitutions, you can think of a continuum: you can have a constitution like the US which is a very general statement of principles and quite brief, even with the amendments, on one end, and then you can have a constitution like the South African constitution which is well over a hundred pages single-spaced and extremely detailed in its articulation of social and political rights and so forth. And what tends to happen is that if you have a general programmatic constitution, like the US one, it’s susceptible to so many different interpretations—the protections can be re-read in so many different ways depending on the politics of the day and the ideology of the judges and so on—courts can come down on just about any side of a question. If you stay at the other end and have an extremely detailed constitution, like the South African one, you run into the other problem that the courts are essentially forced into being a bureaucratic administrative agency, and they can’t do it. And as I indicated in the earlier dialysis case, that becomes difficult eventually. And it’s not that one or the other is worse, that’s just the nature of political reality.

Moving to your broader political theories, you’re known among academics for advancing a political theory based on non-domination. How would you describe non-domination?

The most important normative goal of politics should be to prevent various forms of domination that compromise people’s basic interests.

Why focus on non-domination? And what sort of state arises out of non-domination?

I like the idea of non-domination as a basic normative principle rather than things like freedom or equality or impartiality because I think that human beings know what they don’t want much better than they know what they do want. I grew up in South Africa in the 1960s and 1970s, when many people could tell you what was unjust about apartheid, but they couldn’t really have told you what a just political order would be. I started going to the Soviet Union at the end of the 1980s, and it was the same thing. Many people could tell you why communism was bankrupt and unjust, but if you started asking what a just order would be, they couldn’t really tell you. I don’t think that those two examples are aberrational. I think they’re a part that’s endemic to the human condition. And so my political theory tries to build on this reactive feature of the human condition, that people know what they’re against, and we should think about ruling things out rather than creating blueprints for the future.

And for political institutions, I think democracy is the best bet against domination, and within debates within a democracy, I defend Parliamentarism rather than Presidentialism, and I argue against the multiplication of veto points that we have in our system as compared with the majoritarian systems that you see in the UK. I am skeptical that the separation of powers does much good, and I think it has some negative effects.

You mentioned just now that your formulation of non-domination results from, in part, your upbringing in South Africa. Would you mind going into how the concept of non-domination first appeared to you and how you came to formulate it?

I’m not the only person who’s talking about non-domination—there’s a whole group of people. Michel Foucault wrote these brilliant histories of the dark side of the Enlightenment which were exposing the way in which the Enlightenment facilitated domination; an idea of non-domination as a basic concept of justice essentially animates Michael Walzer’s book Spheres of Justice; Philip Pettit and Quentin Skinner and all of the so-called “Civic Republican” thinkers talk about resisting domination as the animating idea of Republicanism; and Habermas’s work on ideal speech is defined as kind of the antithesis of domination.

So I think it’s an idea that many people have focused on for one reason or another. For me, it’s what I said to you earlier: it captures the reactive character of the human condition much better than other principles that political philosophy often talks about, such as equality, freedom, neutrality, impartiality or anything. And I think that my formulation is related to my experience in that from a very young age I was struck by the profound injustice of Apartheid, but I couldn’t have told you what a just South Africa would look like. And many of the staunchest defenders of the battle against Apartheid are disappointed in what South Africa is today where the Gini coefficient is just as high as it was in 1994, still one of the highest in the world, and there’s 30% unemployment and exceedingly high levels of poverty and crime.

Non-domination seems to require only that the state ensures people’s basic interests are protected from domination. In your view, is there any obligation for the state to go beyond that—perhaps to secure the welfare or happiness of its citizens? Or is it that once domination has ceased and basic interests are protected, no further political obligations exist?

I’m somewhat agnostic about that because I think that so many people’s basic interests are at risk in the world that it’s something of a luxury good to worry about going farther.

I think it’s interesting in this connection to look at the trajectory of Robert Dahl’s work because he was a proponent of non-domination, but his initial account of democracy was first to democratize the commanding parts of the political system and, once you’ve done that, to think about democratic deepening. Think about democracy in the firm, democracy in the family, democracy in all these other walks of life. But, if you look at his last few books, he backed away from this idea because he saw the massive growth of inequalities since the 1970s and the aversions to democratic political freedoms. These were so troubling that he thought it would be more important to focus on basic political rights and freedoms. So the impression I got was that he thought he’d been too quick to say that democracy at the level of public institutions had been taken care of, and now we can focus on other things.

My view is that I look at basic interests right across the board, not just in public institutions. My book, Democratic Justice, was actually about civil institutions. It was about the family, the workplace, and so on. But I did focus on basic interests and some people criticized me for that. For instance, in my writing on the firm, I focused on whether or not worker’s basic interests were protected, and there were critics who said that even when their basic interests are protected, there should be more democratic control of the firm.

I think it’s something about which reasonable people can disagree, but again I keep coming back to the thought that so many people’s basic interests are threatened that it’s better to put energy there than in less consequential things. But for people who are working at a firm where their basic interests are not threatened, I think it makes sense to focus on other matters.

You’ve talked about the difficulties with institutional design, and without being able to easily design institutions to protect and guarantee these individual rights, are there other mechanisms in your theories of non-domination, such as social or communal aspects, that can preserve freedoms and continue to prevent the domination of a country’s citizens?

I am against tabula rasa design because I don’t think we really design institutions. I believe we re-design institutions. We are always rebuilding the ship at sea. And so where you can go is dictated by where you start from.

Judicial review is a good example: if you don’t have it, my advice would be to not institute it. But if you do have it, and it’s embedded in your norms, practices and history, then I think the question is not to just wring your hands about the fact that you have it but to think about how it can become a constructive force from the standpoint of non-domination. That’s why I argue that Brown is better than Roe as an approach to judicial review. But wherever you are, you have to start where you are. You can draw lessons from the experience of others, but you can’t rebuild the whole ship at once.

Accordingly, much of my work involves looking at very specific things—like redistricting in the US with majority and minority districts—, and I ask questions about whether they’re good, bad, or indifferent from the standpoint of non-domination; whether they’re the best way to go given the problems of racial exclusion in American politics; what’re the costs/benefits of majority/minority districts; and what are the alternatives to them. But those are very much dictated by the peculiarities of American history and the status quo, and it’s very difficult to generalize beyond that.