Lords of Democracy: The Judicialization of "Pure Politics" in the United States and Germany

"For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even ifl knew how to choose them, which I assuredly do not. "1

I. Introduction

The pitched legal struggle for the United States Presidency that raged for thirty-six days after the November 7, 2000 election, culminating in the United States Supreme Court's five-to-four decision awarding Texas Governor George W. Bush the Presidency on December 12, 2000,2 left me feeling deeply dissatisfied. Completely independent of the result of the Court's intervention, a more generalized concern for a democratic process pursuant to which five judges could pick the President contrary to the will of a narrow but clear popular electoral majority has nagged me. In fact, because I was living in Germany at the time of the election and its legal aftermath, my concern was anything but rhetorical. German colleagues and friends routinely asked me, with motives ranging from sincere curiosity to piety, to explain what the Supreme Court had done and what it meant in the democratic scheme of things. These questions were justified. Indeed, what kind of democracy is that?3

This Article is my attempt to answer to that question. Along with Richard Pildes's query,4 this piece is also conceived as a reply to Frank Michelman's questions: "Princes for judges. Is that what Americans want? Would that be keeping the faith?"5 It is, as well, a consideration of the claim Mark Tushnet and Ran Hinschl pressed that Bush v. Gore manifests a "nascent phenomenon extending judicialization to the electoral arena itself."6 Importantly, these are questions the relevance of which the recent election cases arising out of the 2002 New Jersey United States Senate race7 and the 2003 California gubernatorial recall8 kept alive. Fittingly, my analysis has led me to reflect on Germany's constitutional response to contested elections.9 I begin by accepting the democratic dualism marked out by the terms "law" and "politics."10 I invoke these opposing concepts with the terms "judicialization"11 and "popularism."12 I clarify these concepts and the dialectic they represent more fully in Part II. Roughly summarized, judicialization occurs when shifts in the balance of power between law and politics favor judicial institutions over representative and accountable institutions.13 From this basic dualism, this Article argues that the Supreme Court's decision in Bush v. Gore14 constitutes a dramatic and unique judicialization of American democracy. In Part III, this Article introduces the Supreme Court's Bush v. Gore decision and the German Federal Constitutional Court's decision in the Hessen Wahlprufung Entscheidung (Hessen Election Review case).15 Because these cases involved the review of contested elections and the respective courts decided them only a few months apart, they serve as parallel constitutional moments for examining this constitutional development in a comparative context.16 In both cases, the courts preferred judicial over alternative, if not constitutionally mandated, political mechanisms for resolving the respective election challenges. The context of these cases, in the sphere of what this article terms "pure politics,"17 is of unique democratic import and serves as the crux of the Article's thesis. It is here, with respect to this distinct sphere of the democratic process, in which the forces of judicialization and popularism come directly and most perilously into conflict: The judiciary acted in both of these cases to seize the very apparatus that led to the selection of a candidate or the success of a political party in a specific election. Here we are concerned with a far more meaningful imposition on popularist values than that posed by judicial review of legislation which is widely treated as the sine qua non of judicialization,18 or even other "indirect" forms of judicial engagement of the "law of democracy."19 Whatever case might be made for the propriety, necessity, or inherence of a judicial role in "the political thicket"20 in these contexts, it is altogether another thing to have the courts settling elections, and in so doing, picking the people's representatives. In Part FV, this Article argues, based on a consideration of the distinct constitutional traditions out of which these cases arose, that the shift the Supreme Court accomplished signals a radical, ideologically driven convergence with Germany's comprehensively judicialized treatment of pure politics.

II. The Judicialization of Pure Politics

A. Judicialization of Society

Gunther Teubner and others21 have expertly chronicled and critiqued the most recent "thrust"22 in the unfolding judicialization of society that is the consequence of the modern welfare state.23 Building upon the work of Habermas, Teubner has traced the legal "colonization of the life world;"24 the law's capture of social relationships behind the restive expansion of the acutely regulated modern welfare state.25 Along with the "materialization" aspect of judicialization, which he finds dominant in this most recent thrust and therefore of preeminent consideration,26 Teubner also admits the significance of various (though lesser) aspects of judicialization, including: the proliferation of law,27 the judicial expropriation of conflict,28 and the depoliticization of society.29