Overruling Democracy: The Supreme Court vs. The American People, by Jamin B. Raskin; Routledge; 290 pages

In Overruling Democracy, Jamin Raskin, a law professor at American University and the former GC of the Reverend Jesse Jackson’s National Rainbow Coalition, argues that the U.S. Supreme Court is “systematically obstructing the channels of democracy.” Raskin’s Exhibit A is the Court’s “shocking” decision in Bush v. Gore, which, he claims, “departed from neutrality, trampled the democratic rights of the people, and actively carried out a partisan agenda.” This bold assertion is simply Raskin’s jumping-off point in this ambitious, argumentative, and provocative book.

Having thrown down the gauntlet in the very first chapter, Raskin moves on to outline specific objections to the decision that ended the 2000 election. There are many. First, the Supreme Court never considered whether the case was a nonjusticiable “political question.” In Nixon v. United States, Raskin notes, the Supreme Court dismissed on “federal question” grounds a complaint by an impeached federal judge that he had not been properly “tried” by the Senate. The Court, in an opinion by Chief Justice William Rehnquist, held that the impeachment process was “exclusively for the Senate to work out.” According to Raskin, the same lack of authority exists with regard to the electoral college, and the Court should have passed on deciding the 2000 election controversy. Even if the Court could have hurdled the political question issue, he contends, it also failed to address Bush’s standing to bring such a lawsuit. After all, if anyone was injured, it was the voters whose votes were not counted, not the candidates.

What About States’ Rights?

The book also takes issue with the Supreme Court’s conclusion that there was no time left for the Florida Supreme Court to “articulate an acceptable and uniform vote-counting substandard.” As Raskin points out, the Electoral Count Act of 1887, on which the Supreme Court relied, merely provides a statutory “safe harbor” for states to appoint their electoral college votes six days prior to the meeting of the electoral college. In fact, as Justice John Paul Stevens noted in his dissent, Congress accepted Hawaii’s electoral votes in the 1960 presidential election several weeks after the safe harbor period ended. In any event, whether Florida law turns the federal safe harbor provision into a statutory requirement is, at bottom, a classic question of state law. Nevertheless, the same Court that has sided with “states’ rights” on so many federalism issues decided this question for the Florida Supreme Court without any real analysis or explanation.

“Relentless Judicial Activism”

Raskin’s criticism of Bush v. Gore serves as an elaborate prelude for laying out his arguments against the Court’s “relentless judicial activism against democracy,” and in favor of a movement to “revitalize constitutional democracy.” His prescription? Amend the Constitution to restore the rights the Court has taken away, a course Raskin has been urging in law review articles for years.

Raskin attacks decisions that have upheld the gerrymandering of congressional districts to exclude minorities; the disenfranchisement of convicted felons and residents of the District of Columbia; the suppression of viable third-party candidates; the suppression of speech and democracy in schools and corporate offices; and the forced allegiance to the U.S. flag. Raskin is nothing if not intellectually voracious; his roving, active legal mind chews up all that comes into its path.

Dense But Compelling

As you might have guessed, Overruling Democracy has the obsession with detail, argument, and footnotes of a law review article. It’s tough going, in places, and probably should not be on the wish list of anyone without a J.D. degree or at least an unhealthy fascination with McCulloch v. Maryland.

On the other hand, the book is a notch above most analyses of Bush v. Gore and makes a compelling argument for viewing the case within the context of troubling right-wing judicial activism. Whether or not you agree with Raskin, his book will make you think differently about the issues he addresses. His enthusiasm and intellectual vigor shine through every page. At the very least, Overruling Democracy disproves the old conservative canard that judges simply interpret the law; they do not make it.

A version of this article originally appeared in The American Lawyer, a sibling publication of Corporate Counsel.