Democracy and Disenchantment
This piece is a response to Ryan D. Doerfler & Samuel Moyn, The Ghost of John Hart Ely, 75 VAND. L. REV 769 (2022).
The Ghost of John Hart Ely is Doerfler and Moyn’s latest salvo against American judicial review. This time, however, their strategy is different. Instead of directly critiquing the Supreme Court’s power, they target the ideology that undergirds it. In particular, they identify the work of John Hart Ely as responsible for animating continued liberal belief that a powerful Supreme Court is both necessary and desirable for democracy. Ely famously justified judicial review on two grounds: it was necessary for protecting political minorities against systemic bias and ensuring a competitive political process by “clearing the channels of political change.” While scholars have closely scrutinized Ely’s proceduralism in the decades that followed Democracy and Distrust’s publication, Moyn and Doerfler contend that his real influence—indeed his “ghost”—lives on through the “two empirical conjectures he makes that mainstream liberals share.” Even if Ely’s theory has fallen out of fashion, liberal confidence in the Court has endured because contemporary thinkers continue to hold on to Ely’s assumptions.