The Supreme Court’s 2011 Term illustrates the consequences of
dismissing democratic politics and democratic engagement in the articulation
of constitutional values. The problem is not fundamentally
that the Court overrides the choices of the people or their elected representatives.
Indeed, several of the most striking examples of judicial
disdain involve cases in which Justices voted to sustain the law being
challenged, or in which the Court was called upon to mediate a conflict
between different levels of government.65 Rather, the problem is
that the Court’s decisions convey a broad message about the democratic
process itself that may undermine public confidence in the democratic
process going forward. The Court’s dismissive treatment of
politics raises the question whether, and for how long, the people will
maintain their confidence in a Court that has lost its confidence in
them and their leaders.