DEMOCRACY AND SOCIAL INJUSTICE: LAW, POLITICS, AND PHILOSOPHY by Thomas W. Simon. Lanham, MD: Rowman & Littlefield, 1995. 341 pp.

Reviewed by James C. Foster, Department of Political Science, Oregon State University.
 

Most mainstream American government and politics textbooks--which is to say most available texts in this Political Science subfield--are in the "problems and prospects" genre. As such, they contain obligatory material encouraging varieties of student/citizen involvement in the political process toward the ends of mitigating American social problems and maximizing America's potential. The message of such material is that readers should become informed, become engaged and, in so doing, become part of the solution rather than part of the problem. Thomas W. Simon's prescriptive message in DEMOCRACY AND SOCIAL INJUSTICE is a variation on this typical PS 101 theme: He wants courts to become part of the solution rather than part of the problem. Like the typical PS 101 theme, Professor Simon's message itself is problematical.

Simon's point of departure is a strategic philosophical turn. As his title suggests, he explores the relationship between democracy and social injustice. In Chapter 1, following the late Judith Shklar's lead, Simon explains his preference for a theory of injustice in lieu of the more conventional "preoccupation" with justice. "It makes a difference," he writes, "whether we describe our political actions as part of a fight against injustice (limiting hell), against other people's suffering, or as a contest for justice (attaining heaven)." (p. 1) Simon argues that the difference his move to prioritize injustice makes has empirical, temporal, psychological and moral dimensions, calling "for people to first focus on what is wrong before embarking upon a program based on what is right." (p. 24)

LAW AND POLITICS BOOK REVIEW readers likely will be most interested in--and skeptical of--the judicially oriented, adjudicatory approach to remedying injustice that Simon develops in Chapters 3 and 6 of his book. He sets the stage for his approach by defining social injustice in Chapter 2 as consisting "of an infliction of social harm upon relatively powerless individuals because of their negative group identity." (p. 30)

In Chapter 3, Simon turns to the United States Supreme Court, analytically, for purposes of building a "middle range" theory of disadvantaged groups, and to courts more generically as sources of a democratic response to injustices perpetrated against such groups. Basically, Simon argues (1) that the suspect classifications concept can serve as a jurisprudential vehicle to ameliorate injustices done to groups defined as disadvantaged along several "contours," and (2) that courts ought to remedy injustices done to such groups. He proposes that, in addition to "race/ethnicity," courts could treat classifications based on "gender/sexual orientation, poverty, infirmity and age" as suspect and thus subject them to strict judicial scrutiny. His key to becoming suspect is staking out a "claim for disadvantaged status." (p. 97) He proposes that the judiciary actively protect disadvantaged groups. His key to judicial remedies is "correcting structural faults in the democratic system . . . removing impediments [to allow] subordinated groups to participate in the society . . ." (pp. 98-99)

In Chapter 6, Simon refines his proposal. Terming his recommendation "judicial Rule For devices," he urges that American judicial institutions "rule for the disadvantaged" by rendering "substantive value judgments . . . on behalf of certain designations of people"-- specifically, disadvantaged groups. (p. 177.) Simon says that "[w]e should interpret `the judiciary' in the broadest possible terms," and he cautions against "a top-down interpretation, which uncritically takes the Supreme Court as the most important part." (pp. 215-216.) While Simon specifies "[n]eighborhood dispute centers, grievance procedures, and creative judicial devices that we have not even thought of" as advancing the sort of "judicial Rule For" he champions, court adjudication figures centrally in his proposal.

I would characterize Simon's "judicial Rule For" as a Footnote-4-approach to remedying injustice. He probably would prefer "Suspect-Class-Democracy-approach," derived from the title of his 1990 article. Whichever, Simon advocates judicial leveling of the social playing field for identifiably disadvantaged groups, thereby, according to his argument, advancing democracy. He wants courts to adopt an "Injustice Perspective," affording disadvantaged group members special judicial protection. (Chapter 4) Although Simon advances his Footnote-4-approach to fighting group injustice within the context of a several sophisticated philosophical analyses--for instance, of the "presupposition" that democracy requires a level playing field (Chapter 5)--and in conjunction with suggestive comparative examples of "equal protection for disadvantaged groups" (Chapter 4), Simon's CAROLENE-PRODUCTS solution itself seems rather naive. His book is long on the philosophy of relations between democracy and social justice, but short on law and politics of judicial process; his subtitle to the contrary notwithstanding.

In the course of defending "judicial Rule For," Simon, addresses in passing the countermajoritarian concerns articulated by Alexander Bickel, James Thayer, and John Hart Ely. He does not confront the variety of constraints on courts as vehicles of social change examined in a body of literature exemplified by classics like Stuart Scheingold's THE POLITICS OF RIGHTS and Gerald N. Rosenberg's THE HOLLOW HOPE. Neither does Simon address the wholesale judicial retreat from the very approach he embraces. As Aviam Soifer poignantly has argued, CAROLENE-PRODUCTS has been "inverted." Criticizing recent trends in equal protection jurisprudence, Soifer concludes that "CROSON comes perilously close to resuscitating TRUAX v. CORRIGAN." (Soifer, p. 137) Fundamentally, and most problematically, Simon fails to grapple with the American judiciary's abject failure to counterpoise what Soifer calls "group context" to this society's prevailing "individualistic ethic." (Soifer, p. 183) Given these lapses, Simon sounds like he is protesting too much when he writes "I do not harbor any hopes that protection of the disadvantaged will soon become a rallying cry adopted by the present Supreme Court," but that "[m]any critics of the current judicial system would welcome proposals that move the court system in the more progressive direction of protecting the disadvantaged." (pp. 99, 215.)

Apparently, Simon is not a subscriber to THE LAW AND COURTS DISCUSSION LIST [lawcourts-l@usc.edu]. Were he a subscriber, regularly he would have access to exchanges about the relatively limited institutional capacity of courts to bring about social change. Recently, Simon could have read an exchange about whether political scientists are too fixated on the U.S. Supreme Court--a contention with which presumably he would agree. Nevertheless, during this exchange, those posting to that list displayed characteristic skepticism regarding the practicality of employing what Lief Carter recently called "Courty" reasoning and rhetoric, such as equal protection and suspect class--the very approach in which Simon puts considerable stock.

Although Professor Simon's CAROLENE PRODUCTS Solution falters, there is considerably more to his project than this. Many subscribers to THE LAW AND COURTS DISCUSSION LIST and the LAW AND POLITICS BOOK REVIEW would benefit from reading DEMOCRACY AND SOCIAL INJUSTICE. Simon brings considerable philosophical sophistication to his discussions of injustice, democracy, and the relationship between disadvantage and democracy, shedding light on these subjects. His comparative analysis of equal protection for disadvantaged group contains food for thought that could be read profitably in conjunction with Theodore Becker's and Martin Shapiro's work.
 

Becker, Theodore L. (1970). COMPARATIVE JUDICIAL POLITICS: THE POLITICAL FUNCTIONINGS OF COURTS. Chicago, IL: Rand McNally.

Bickel, Alexander. (1962). THE LEAST DANGEROUS BRANCH. New Haven, CT: Yale University Press.

Carter, Lief. (1997). [lhcarter@cc.colorado.edu], "Re: Court Centered? Response to Friedman," in THE LAW AND COURTS DISCUSSION LIST, [lawcourts-l@usc.edu].

Ely, John Hart. (1980). DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW. Cambridge, MA: Harvard University Press.

Rosenberg, Gerald N. (1991). THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE. Chicago, IL: University of Chicago Press.

Scheingold, Stuart A. (1974). THE POLITICS OF RIGHTS: LAWYERS, PUBLIC POLICY, AND POLITICAL CHANGE. New Haven, CT: Yale University Press.

Shapiro, Martin. (1981). COURTS: A COMPARATIVE POLITICAL ANALYSIS. Chicago, IL: University of Chicago Press.

Simon, Thomas W. (1990). "Suspect Class Democracy." 45 UNIVERSITY OF MICHIGAN LAW REVIEW. 107-158.

Soifer, Aviam. (1995). LAW AND THE COMPANY WE KEEP. Cambridge, MA: Harvard University Press, 1995.

Thayer, James. (1974). JOHN MARSHALL. New York: Da Capo Press.
 

RICHMOND v. J.A. CROSON COMPANY, 488 U.S. 469 (1989).

TRUAX v. CORRIGAN, 257 U.S. 312 (1921)

UNITED STATES v. CAROLENE PRODUCTS, INC., 304 U.S. 144 (1938).