The Yale Law Journal

April 2005

Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics

William N. Eskridge Jr.
114 Yale L.J. 1279 (2005)

John Hart Ely argued that judicial review is most appropriate when democratic politics has broken down. Professor Eskridge argues that judicial review is also appropriate to lower the stakes of pluralist politics. Stakes get high when the system becomes embroiled in bitter disputes that drive salient, productive groups away from political engagement. Groups disengage when they believe that participation in the system is pointless due to their permanent defeat on fundamental issues or their perception that the process is stacked against them, or when politics imposes burdens threatening their group identity. At the Founding, religion was the best example of high-stakes politics, and the Religion Clauses of the First Amendment were designed to lower the stakes of religion-based politics. Pluralism-facilitating judicial review generalizes the stakes-managing principles of the Religion Clauses to suggest applications of the Free Speech, Due Process, and Equal Protection Clauses to issues ranging from abortion protests and same-sex marriage to English-only laws and the war on terrorism.