In United States v. Carolene Products Co., Justice Stone suggested by indirection that there "may be narrower scope for operation of the presumption of constitutionality" when courts are called upon to determine the validity "of statutes directed at particular religious . . . or national . . . or racial minorities."' In such cases, he explained, "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry."' Forty years later, that cautious suggestion has ripened into an attitude. The fact that legislation bears heavily upon the interests of a minority has come to be widely regarded as a reason for subjecting it to closer judicial scrutiny than other legislation whose constitutionality is challenged and perhaps as creating a presumption of its invalidity. Yet, exactly what is meant by these conclusions is, even now, far from certain. With the passing of time, moreover, the boundaries that circumscribed Stone's suggestion have become blurred. His reference to "discrete and insular minorities" has been read not merely as an elaboration of the reason for special judicial solicitude for "particular religious . . . or national . . . or racial minorities," but as an open-ended invitation to extend similar protection to an ill-defined assortment of groups that have failed to attain their objectives through the political process. To some extent, the uncertain contours of the notion that the judiciary bears special responsibility for protecting minorities from legislation injurious to them is a consequence of the continually changing composition of the Supreme Court in the years since Justice Stone wrote. The deeper reason for the uncertainty, however, is that it has never been clear precisely how the fact that legislation bears heavily upon a minority connects with the conclusion that it ought to be subjected to close judicial scrutiny. Except as frequency of repetition may have made it seem so, after all, the connection is not self-evident. "Democracy" means government by the people, either directly or through representation. Although a commitment to it does not entail acceptance of simplistic majoritarianism, there remains the question why, in a nation generally committed to democratic values, a minority should have a special claim to promote its interests outside the political process. The belief that there are grounds for such a claim is the most frequent manifestation of an older and, very likely, still a more commonly held view, that judicial review is a necessary safeguard of the rights of minorities. Because of its stress upon rights-entitlements that are assumed to exist independently of the judicial process-the traditional view does not imply the degree of judicial activism that its more recent expression seeks to justify, but it is nonetheless father to it. What the latter owes to the former, specifically, is the belief that ." 'holding democracy in judicial tutelage' is the only way that has yet been devised for preventing the 'tyranny of the majority' from imposing on the minority." My primary purpose in this essay is to explore these two versions of the argument that courts have a special responsibility for protecting minorities. Proponents of the argument often rely upon both versions indiscriminately. Yet, the two versions rest upon quite different premises concerning the nature of constitutional law and the judiciary's responsibility with respect to it. The more traditional version of the argument, that judicial review is a necessary safeguard of the rights of minorities, posits a conception of the judicial function that can be accommodated with the nation's commitment to democracy, but it can do so only by embracing a conception of constitutional law that is inconsistent with our national experience. The more recent version of the argument, stemming from Justice Stone's suggestion in Carolene Products, rests upon a more satisfactory conception of constitutional law, but this advance is achieved at the cost of adopting a conception of the judicial function that cannot be reconciled with democratic values. In contending that neither version is satisfactory, I do not mean to suggest that courts have no part to play in protecting minorities against the hazards they face in the political process. My point, rather, is that conventional statements of the courts' role, in treating judges as the watchdogs of democracy, promise more than they can justify. In the concluding section of this essay, therefore, I shall attempt to sketch an alternative conception of the courts' role, one that would permit them to protect minorities against the most serious threats to their interests and yet would respect the ultimate authority of representative institutions to determine the values to be expressed by law.
Sandalow, Terrance. "Judicial Protection of Minorities." Mich. L. Rev. 75 (1977): 1162-95.