SEPTEMBER 27, 2024 
The Rise of Populist Primacy
Friday, 509 O'Brian Hall
Noon Reception; 12:30 to 2:00 p.m. Presentation
Option to attend via Zoom, here.
ACCESS PAPER IN ADVANCE OF THE EVENT.
Presentation Abstract: The Roberts Court is demolishing much of the modern Supreme Court’s legacy. Critics and scholars have claimed that this project is wholly political, under the sway of conservative forces. It is incontrovertible the current Court is sweeping away much of the legacy of the past 70 years of lawmaking. But is its project entirely destructive and fundamentally lawless, or is the Roberts Court advancing some alternative theory (which may or may not be morally desirable or conceptually sound)?

This article argues the Roberts Court is advancing an alternative theory with increasing coherence and vigor. This theory, populist primacy, asserts authority should be consolidated in the political actors who can claim to be most directly accountable to the dominant constituency. Populist primacy radically inverts the judicial role and substance of constitutional law that has guided the bench since the Warren Court, both in constitutional interpretation and as a steward of liberal democracy: defense of vulnerable groups and ensuring appropriate balance and moderation in the distribution of power. In consolidating political power in dominant entities, the Roberts Court rejects these principles, and is thereby deconstructs much of the infrastructure of modern constitutional law.

This article demonstrates the rising influence of populist primacy by considering its influence upon election law, particularly race and democratic process, the role of parties, and campaign finance. It shows that in each area the Roberts Court has pursued consolidation of power, a trend exemplified in the past terms Alexander v. NAACP, which instructed the federal judiciary to defer to the dominant actors in the districting process, state legislatures. Alexander turned against a long legacy of judicial intervention to moderate the power of majorities and privileged actors. This Article also shows how populist primacy synthesizes the broader trends of the Court particularly apparent in the recent terms (Loper Bright, Grants Pass, Jarkesy, Dobbs, Arthrex, West Virginia v. EPA; Seila Law). The Court has shown a novel preference for using constitutional law to centralize power, rather than balance and moderate it.

Populist primacy is the polestar of the Roberts Court, but it has not yet been fully realized. This Article anticipates what areas of election law may face further radical change, and suggests how jurists and scholars should engage with this new direction by the Court. One person, one vote (the previously sacrosanct bedrock of modern election law) and the Section 2 Voting Rights Act test both retain significant. It also identifies the tensions, both legal and jurisprudential, populist primacy may face as the Roberts Court continues to advance it. Vigorous interpretation of the Constitution, including in an originalist mold, often distributes rather than centralizes power through core principles such as federalism and separation of powers. The consolidating impulse of populist primacy will inevitably generate tensions with the substance of the Constitution, particularly as understood by its plainest meaning. Effective engagement with the bench will require negotiating these tensions as well as framing arguments through appeals to the best understanding of centralized constituent authority.