Seventy-five years ago, a plurality of the Supreme Court in an extraordinary footnote to a rather ordinary case announced a new theory of judicial review. Under this new theory, the Supreme Court would closely scrutinize both laws that imposed restrictions on the ordinary operation of the political process and laws that discriminated against discrete and insular religious, national, or racial minorities. The underlying premise of this theory of judicial review was that democratic actors could not be trusted to either maintain an open and inclusive political process or to protect the rights and defend the interests of politically marginalized minorities. The Court simply presumed that the democratic process did not operate properly. This democratic dysfunction arising from a tyranny of the majority meant that democratic rights and the rights of the politically marginalized were entitled to special judicial protection from the majoritarian processes.
It was this judicial presumption about the dysfunction of politics that seemed to animate the asymmetrical treatment of congressional authority to enforce the Fourteenth Amendment in the 1960s. So long as Congress used its power to enhance the equal protection rights, and particularly the voting rights, of racial minorities, the Court gave great deference to its actions. But if ever it were to decide to use this power to dilute the equal protection rights of these minorities, the Court announced that the laws would not be treated with the same deference. Instead, such law would likely be subject to intense scrutiny and ultimate judicial invalidation. The lesson of this era seemed to be that democracy could not be trusted to protect minorities and their political rights.
As the Supreme Court prepares to hear oral argument in Shelby County v. Holder, a different form of democratic distrust seems to have emerged in Supreme Court doctrine. Minorities such as lesbians and gay men that would have been considered politically marginalized are now viewed as too politically powerful. Laws that benefit racial minorities are suspected to be the product of racial politics that democratic actors adopt to please the organized and important racial constituencies. And perhaps most relevant to the case of Shelby County, a Congress once given great leeway to enhance the equal protection rights of minorities through its Fourteenth Amendment enforcement authority, now has similar actions subject to much more rigorous scrutiny in the form of a congruence and proportionality test.