The Roberts-Kennedy Court and Post-Political Democracy

Abstract

This Essay focuses on four neoliberal ideological tendencies of the Roberts-Kennedy Court. First, and most striking, is the complacency about corruption, which has been a central threat in western political theory since the Enlightenment. This reveals itself mostly in contrast to a history of anxiety about corruption, but also in the way that the First Amendment speech interests are valued when weighed against the corruption threat, as compared to other threats. Relatedly, the cases suggest that a person in democratic society is primarily a consumer, instead of a citizen, and that the job of the court is to protect the material condition of the person, as opposed to her political position. Third, despite rhetoric about a wide open marketplace, they endorse a vision of a regulated political marketplace, unregulated only as regards the spending of money. Finally, they show a surprising lack of commitment to federalism, suggesting that their federalism cases are more about taking certain decisions out of democratic, collective choice than relocating those decisions in the states.

Taken together, the Roberts-Kennedy decisions suggest a vision of a post-political democratic theory, democratic in form but not in practice.

Keywords: Election Law, Politics, Neoliberalism