Over the past century, especially after the demise of Lochner, both judges and scholars have increasingly endorsed judicial review of equality claims. The Warren Court’s jurisprudence and John Hart Ely’s theory of representation-reinforcement, for example, helped to legitimate the role of courts in requiring reasons for legislative classifications that disproportionately burden certain groups. By contrast, countermajoritarian concerns have led courts to refrain from judicial review of liberty claims. In this Article, Professor Rebecca L. Brown argues that to stay true to their democratic role courts must protect liberty in the same way that they have protected equality. Turning first to history, Brown shows that from the Revolution onward representatives have been expected to achieve what James Madison termed a “communion of interests” by according positive value to the interests of all their constituents and by subjecting themselves to the burdens they impose on others. Suspect classifications have become the prime indication of a breakdown in the legislative process—a clear sign that the communion of interests has been severed. Under Ely’s theory, judicial review is justified in these cases to reinforce a representational system gone awry. In an increasingly heterogeneous society, however, the representative process can malfunction—the communion of interest can be severed—even without the use of suspect classifications. Why then, Brown asks, should judicial review be justified for equality claims but not for liberty claims, when the underlying interests are the same and there is a failure in the representative system? Pushing Ely’s theory further, Brown offers a new approach to the judicial review of liberty claims. The approach requires courts to weigh the public reasons asserted to justify burdening individual liberties, thereby satisfying themselves that lawmakers likely would be willing to assume the same burdens they impose on others. This protection of individual liberty, Brown shows, is the logical evolution of the theory of judicial review that currently supports equality jurisprudence.
Rebecca L. Brown
Testing the Harm of Campaign Spending
In its landmark campaign finance decision Citizens United v. FEC, the Supreme Court found that favoritism or influence over elected officials gained by wealthy campaign contributors does not—in the absence of outright corruption—give rise to the sort of constitutional harm that would justify restrictions on campaign spending. The Court was also insistent that any perceptions of ingratiation would not undermine the electorate’s faith in democracy. This paper challenges the doc- trinal and empirical underpinnings of those assertions. We argue that a loss of faith by the electorate implicates a central constitutional value and is a sufficiently compelling interest to justify campaign finance regulation. We also demonstrate empirically that the Court should not have been so confident that the elecorate’s faith in democracy is unaffected either by the appearance of influence or access due to campaign spending or by independent expenditures.
Jeremy Waldron, Lewis A. Kornhauser, The Honorable Stephen Breyer, T.M. Scanlon, Rebecca L. Brown, Liam Murphy, Robert B. Silvers, Thomas Nagel
Last year, the NYU community lost an intellectual giant in Professor Ronald Dworkin. The school and the Law Review joined together to honor Professor Dworkin’s writings, ideas, and of course, his legendary colloquia. Academics, philosophers, and judges gathered to pay tribute. In the pages that follow, we proudly publish written versions of those tributes.1 The ceremony closed with a short video clip of one of Professor Dworkin’s last speeches, titled Einstein’s Worship. His words provide a fitting introduction:
“We emphasize—we should emphasize—our responsibility, a responsibility shared by theists and atheists alike, a responsibility that we have in virtue of our humanity to think about these issues, to reject the skeptical conclusion that it’s just a matter of what we think and therefore we don’t have to think. We need to test our convictions. Our convictions must be coherent. They must be authentic; we must come to feel them as our convictions. But when they survive that test of responsibility, they’ve also survived any philosophical challenge that can be made. In that case, you burnish your convictions, you test your convictions, and what you then believe, you better believe it. That’s what I have to say about the meaning of life. Tomorrow: the universe.”