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90 N.Y.U. L. Rev. 1527 (2015)
Political Powerlessness

handle is hein.journals/nylr90 and id is 1549 raw text is: POLITICAL POWERLESSNESS NICHOLAS 0. STEPHANOPOULOS* There is a hole at the heart of equal protection law. According to long-established doctrine, one of the factors that determine whether a group is a suspect class is the group's political powerlessness. But neither courts nor scholars have reached any kind of agreement as to the meaning of powerlessness. Instead, they have advanced an array of conflicting conceptions: numerical size, access to the franchise, financial resources, descriptive representation, and so on. My primary goal in this Article, then, is to offer a definition of political powerless- ness that makes theoretical sense. The definition I propose is this: A group is rela- tively powerless if its aggregate policy preferences are less likely to be enacted than those of similarly sized and classified groups. I arrive at this definition in three steps. First, the powerlessness doctrine stems from Carolene Products's account of those political processes ordinarily to be relied upon to protect minorities. Second, those political processes refer to pluralism: the idea that society is divided into countless overlapping groups, from whose shifting coalitions public policy emerges. And third, pluralism implies a particular notion of group power- one that (1) is continuous rather than binary, (2) spans all issues, (3) focuses on policy enactment, and (4) controls for group size, and (5) type. These are precisely the elements of my suggested definition. But I aim not just to theorize but also to operationalize in this Article. In the last few years, datasets have become available on groups' policy preferences at the fed- eral and state levels. Merging these datasets with information on policy outcomes, I am able to quantify my conception of group power. I find that blacks, women, and the poor are relatively powerless at both governmental levels; while whites, men, and the non-poor wield more influence. These results both support and subvert the current taxonomy of suspect classes. INTRODUCTION ................................................... 1528 I. CONCEPTUAL CONFUSION ................................ 1536 A . C ourts .............................................. 1537 B . Scholars ............................................. 1542 II. PLURALISM AND POWER ................................. 1545 A. From Theory to Meaning ........................... 1545 * Copyright © 2015 by Nicholas 0. Stephanopoulos, Assistant Professor of Law, University of Chicago Law School. I am grateful to Sonu Bedi, Adam Chilton, Justin Driver, Chris Elmendorf, Patrick Flavin, Anthony Fowler, Barry Friedman, Heather Gerken, John Griffin, Aziz Huq, David Law, Saul Levmore, Brian Newman, Martha Nussbaum, Daniel Ortiz, Eric Posner, Doug Spencer, Geoffrey Stone, David Strauss, Chris Tausanovitch, Laurence Tribe, Mark Tushnet, and Mila Versteeg for their helpful com- ments. My thanks also to the workshop participants at Bar-Ilan University, the Chicago Junior Faculty Workshop, Columbia Law School, FSU College of Law, the Israeli Knesset, LSU Law Center, and the University of Sydney, where I presented earlier versions of the Article. I am pleased as well to acknowledge the support of the Robert Helman Law and Public Policy Fund. 1527 Imaged with Permission of N.Y.U. Law Review

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