Democracy and Distrust

by John Hart Ely

Of the immense legal literature on US democracy and the role of the American Supreme Court this is the one book that has most profoundly affected my understanding of the rule of law, and of the role of the judges in compensating for the failures of democracy. Democracy is defined by majoritarianism – you win the majority of the vote and you rule. But there are minorities who don’t have the means to counter the rule of the majority by definition, because they are a minority and don’t have enough votes. This judicial counter-majoritarianism started under Chief Justice Earl Warren, for whom Ely clerked, when the Supreme Court ruled to end bus and school segregation in 1954, sparking the Civil Rights movement which eventually led to Barack Obama becoming president.