How to fix America from below
A bold new vision for improving democracy has propelled a charismatic young professor into the legal firmament. She calls it ‘federalism all the way down.’
When Americans go to the polls next month, some will vote by pulling a lever, while others will ink in a bubble or touch a screen. Some will breeze through in minutes, while others wait in line for hours. Voters may be asked for ID, depending where they live; they might find the polling place has run out of pens. You can think of all this variety as local flavor. You can also think of it as a crisis waiting to detonate, as it did in 2000, when the election turned in part on Florida’s strange “hanging chads.”
Election reformers tend to shudder at the patchwork inconsistency with which the United States approaches its national elections, and they regard the process as a woefully disorganized mess. Yale Law School professor Heather Gerken takes a different view. When she looks at all the ways in which Americans vote, she sees a national conversation about how best to hold an election—one that shouldn’t be squelched, but harnessed to improve voting for everyone.
Gerken’s proposal for how to do this—she calls it the Democracy Index—has been embraced by Barack Obama, Michael Bloomberg, and Hillary Rodham Clinton. Her suggestion is that if someone started ranking states and electoral districts based on how smoothly and reliably their voting went, election officials would suddenly have a powerful incentive to improve—to learn from one another’s mistakes and to borrow the best ideas. In a 2009 book laying out the idea, she compared its potential power to US News and World Report’s annual college rankings.
Behind Gerken’s Democracy Index lies another, bigger argument about how a society should work: When properly leveraged, the disorder and chaos that arises in a country as big as ours can be forces for progress and reform. This principle has defined not only Gerken’s thinking about elections, but a range of iconoclastic, provocative arguments that have launched a new conversation in the legal world about how, exactly, American power should be distributed. And Gerken herself has emerged in recent years as one of the most closely watched young stars in the legal academy.
She grew up amid pigs and apple trees in the tiny town of Bolton, Mass., got her start in academia as a professor at Harvard Law School, and has spent her short but increasingly high-profile career jumping from practical questions—like how to make elections run more smoothly—to deeper, more expansive theories about democracy itself. For this, the 43-year-old has been honored in ways typically reserved for much more senior scholars: Earlier this month, the University of Tulsa College of Law hosted a daylong conference about her work that attracted legal scholars from all over the country. Rumors of her potential ascent to the deanship of a top law school like Yale or Harvard are the subject of a popular parlor game in legal circles.
Armed with vivid turns of phrase and a rapid-fire delivery, Gerken has advanced a vision of governance unusual for someone whose political convictions are firmly liberal. Unlike other progressives, who instinctively dig in against conservative ideas of federalism, she wants local decision-making bodies to be given more power, and more opportunity to rebel against federal policy that doesn’t serve their interests. In the book she’s working on now, tentatively titled “The Loyal Opposition,” she puts forth a new way of thinking about how to empower America’s minority groups—not through the conventional tools of “diversity,” but by pushing more power down to a wider array of Americans.
“She’s tapping some veins of thought that have [otherwise] been pretty much ignored,” said Sanford Levinson, a professor at the University of Texas at Austin School of Law. “And she’s putting them together in new and interesting ways.”
Sitting in her office at Yale on a recent afternoon, Gerken described what she likes to call “the democratic churn.” This is the process by which the countless decision-making bodies that make up our country’s government—not just states but city councils, school boards, even zoning commissions—constantly assert themselves, in ways that add up to a serious collective reckoning with policy and values. “I would like people to think about the city of San Francisco as engaging in an act of dissent when it marries same-sex couples,” she said. “And when the religious right passes a rule about teaching intelligent design in school, I want [people] to think about that as an act of dissent [too].”
Churn, Gerken said, is what happens when those acts of dissent create a real national debate, driving progress by forcing issues out of the realm of the hypothetical and making them real policies. Churn is Gerken’s word for the fitful, often difficult, processes that create social change. “I mean it to be kind of ugly,” she says. “It’s not like it’s neat and easy, but it’s productive.”
The ideas Gerken is known for first took shape, appropriately enough, as a disagreement. Several years ago, not long after she’d been hired as a young professor at Harvard, she sat in on a pair of lectures by Cass Sunstein, the influential law scholar who was then a professor at the University of Chicago. What she heard Sunstein say, in brief, was that societies in which dissenting voices are encouraged tend to be more prosperous than ones where they are not. Gerken sat in the back of the hall with a notepad and listened, writing furiously. “If you had looked back,” Gerken says, “you would have wondered, why is that junior professor sitting there scribbling like a crazy person? Is she transcribing this speech? But it was just the opposite.”
In fact, Gerken was writing down all the ways in which she thought Sunstein was wrong. What Sunstein didn’t seem to realize, she wrote, was that in order for minority groups to have real influence in politics—in order for them to make meaningful contributions to the way society works—they had to have more than the right to make their voices heard. They had to have the power to actually do things their way.
By the time Sunstein’s second lecture was over, Gerken had filled her notepad with a “case against” so intricate and complete that it became a rough draft of the paper that would inform all her subsequent work. In that paper, “Dissenting by Deciding,” which the Stanford Law Review published in 2005, Gerken offered a new vision of the role of minority groups in democracy—one in which they’re not merely guaranteed a seat at the table, but sometimes get to call the shots.
Gerken calls this notion “second-order diversity,” and it comes from her belief that in order to advance equality and run a truly democratic government, it’s no longer enough to be making sure that minorities are proportionally represented in society. “That had to be the first fight, right?” she said. “We were moving from a world where African-Americans and women were excluded entirely from these institutions. So the first fight had to be to get people there.” But now, she said, the strategy has started to backfire: Instead of giving minorities a bigger voice in politics, “it relentlessly reproduces the same inequality on every decision-making body that minorities experience everywhere else. You are, in effect, a minority everywhere, which is kind of a strange vision of empowerment.”
What Gerken wants to see instead is a decentralization of government—what she calls “federalism all the way down”—in which local authorities can stand up for their own beliefs, even when implementing policies imposed from above. That, in Gerken’s view, is what happened when San Francisco’s mayor, Gavin Newsom, made it legal for gay people to get married in his city; it’s also what happened when the city council of Hazleton, Pa., passed a law that discouraged people from renting and hiring illegal immigrants. Gerken wants such acts of defiance to be seen as part of an honorable tradition of dissent, she said—“not as something that’s lawless or parochial.”
Gerken’s faith in local power puts her somewhat at odds with most of her fellow progressive democrats, and seems instead to ally her with Republicans who champion states’ rights and oppose federal intrusion. But Gerken doesn’t quite see it that way: What’s needed, in her view, is not more state sovereignty, but rather that all sorts of smaller authorities enjoy the leeway to push back on laws handed down to them from up above, thus forcing an urgent and consequential debate about their merits. “She feels like the way we make progress is often not from only listening to dissenters, but also giving them a chance to show us that they might be right about things,” said Ernest Young, a professor at Duke University School of Law.
Gerken recognizes that giving local communities more power might result in policies the vast majority of Americans find repugnant. “If you create institutions that are majority-minority, problems happen,” she said, adding, “Jim Crow is the ugliest example.”
Still, Gerken believes the benefits will outweigh the costs: “The reason why people believe in dissent is not that they believe everything dissenters believe in. But they believe that over the arc of time, it is better to have people be able to speak their mind than not. Even though it creates chaos and dissension, and it’s a pain in the ass, we believe in it as a value. And I want people to have that same belief about local policy.”
As abstract and high-level as Gerken’s ideas may sound at times, they have very concrete roots in her own experience, and her own frustrations with the traditional tools of social change. As an undergraduate at Princeton, volunteering among poor families in Trenton, N.J., she woke up to the limits of what one person can do against years of systematic discrimination. “You start to realize that you’re just doing Band-Aid work—that there are a lot of big, architectonic problems that you’re not really addressing,” she said. She saw becoming a lawyer as a way to make a bigger difference, and after the University of Michigan Law School—and several years clerking for judges, including Justice David Souter on the Supreme Court—went to work at a firm where she defended African-American-dominated voting districts against politically motivated attempts to break them up.
Working those cases, Gerken had an epiphany: that even the right to vote, something she’d grown up believing was the key to empowerment, isn’t worth much if government is set up so that those who are part of a minority can never get their way. As soon as the majority-minority districts Gerken was working on were redrawn, and the African-Americans who lived in them were siphoned off into mostly white districts, their “voices” ceased to count.
It was this revelation that made Gerken realize that fighting for minority rights is not enough—that fighting for the right kind of political system was just as essential. “We’ve reached the point where discrimination doesn’t come with smoking guns and people using the N-word and saying ‘that’s why I didn’t hire him.’ It’s incredibly hard to detect,” she said. “What really matters for racial minorities is the kinds of stuff that legislators can give them, and local city councils can give them, and states can give them—not the kind of stuff that they’re going to get through a court.”
At this point, Gerken has laid out this argument hundreds of times—in conference talks, classes, even YouTube videos. Her delivery is remarkably casual, peppered with easy metaphors and little words like “stuff” that make even the most ambitious ideas seem matter-of-fact. Listening to Gerken explain herself, you also get the sense that she’s in a hurry—that the reason she has trained herself to be direct and colloquial is that she doesn’t want to waste time making people confused about what she’s saying.
“She kind of has an aura that makes her impossible to ignore when she’s talking,” said Todd Pettys, a professor at the University of Iowa College Law, who has twice brought Gerken to Iowa for lectures. He added, “She’s also got a clarity of thought and clarity of communication, and when you put all those things together, it makes her very powerful in academia.”
It makes her powerful in the regular world, too—sometimes in unexpected ways. In 2010, she walked the streets of her New Haven neighborhood to collect signatures in favor of licensing a new bar that had run into the NIMBY-ish objections of some neighbors. This year she has been volunteering for the Obama campaign, helping ensure that polling places in battleground states are prepared for Nov. 6. She has also been consulting with the Pew Center on the States on what will be the first ever real-world trial of her Democracy Index, which is set to be unveiled shortly after the election.
Her determination to engage with the world outside of academia underscores something else that makes Gerken an outlier among her colleagues, which is that she’s perfectly comfortable bridging the gap between legal theory and the weeds of policy. “Hers is not a solitary genius model,” said David Schleicher, an associate professor at George Mason University School of Law who used to be one of Gerken’s students.“It’s not John Nash, the weirdo who doesn’t live in the real world, and ideas...pop out of his head by accident. Heather’s brilliant, but it’s a social brilliance. It comes from a place of arguing with the world.”
This past summer, she was trying to finish no fewer than seven law review articles and an outline of her new book. Asked whether she’d ever want to leave academia and, say, go work in Washington, she said she still had 10 years worth of ideas in her that she wants to get down on paper. “The death of an academic is when the ideas run out,” she said, “and I’m just nowhere close to that.”