A Broad Read of Ely: Political Process Theory and Fragile Democracies

We develop a typology of four functions that courts may perform under a broad read of Ely: protecting fragile democracies against erosion, improving the performance of democratic institutions, protecting discrete and insular minorities, and protecting against majoritarian political failures. The broad theory, we argue, is a useful conception of judicial role, although it faces various difficulties, including how to define the limits of judicial review, and how to prioritize some aspects of the role (such as those compelled by the narrow read of Ely) over others. Nonetheless, we argue that the broad read of Ely often asks the right kinds of questions of both courts and scholars.