Research Matters: Nicholas Stephanopoulos on "Political Powerlessness"

Research Matters is a regular feature in which a member of the faculty talks about some of his or her latest work and its impact and relevance to law and society.

Assistant Professor Nicholas O. Stephanopoulos wrote “Political Powerlessness,” a paper that uses empirical analysis to help fill what he calls a “hole at the heart of equal protection law” — the lack of consensus over the meaning of political powerlessness. In the paper, which will be published in the New York University Law Review, Stephanopoulos offers a definition drawn from pluralist theory, arguing that a group is relatively powerless if its aggregate policy preferences are less likely to be enacted than those of similarly sized and classified groups. He then uses data to quantify the relative political power of different groups.

Q. Why did you write this piece?
A. There were a couple of reasons. One was that the powerlessness doctrine has always struck me as interesting but subject to an awful lot of doctrinal and scholarly confusion. There is no real definition of group power or lack of power. Courts and academics are all over the map in terms of how they think about group influence. So I thought I would try to come up with a definition of group power that is coherent and makes theoretical sense. Also, my main area of work so far has been pure election law, and this paper is more of a mainstream constitutional law paper. What’s interesting, though, is that the powerlessness doctrine is the piece of mainstream constitutional law that is most related to issues of electoral success and policy success, which election law scholars think about a lot. So this was a good place for me to move into what is a new field for me.

Q. As you noted in the paper, the need for a more specific and universally accepted definition of group power has been evident in a number of recent cases, including the trial over California’s Proposition 8, the ballot initiative that banned same-sex marriage.
A. It’s a confusing and unsatisfying situation for parties in cases like that because they know they have to establish powerlessness if they want a group to qualify as a suspect class, but they have no clear guide. This came up in the Prop 8 trial — where one side argued that gay group power was relatively low and the other argued that it was substantial — as well as in dozens of other cases involving gay rights, juveniles, the poor, and aliens. You see parties struggling all the time over what it means for a group to either have power or not have power.

Q. Is group power inherently tricky to define or has there just not been a good way to measure it before now?
A. I think there is something inherently tricky about it. When we say a group is powerful or not powerful, we could mean a whole lot of things. We could be referring to the right to vote, or to descriptive representation, or to some policy outcomes but not others. Power doesn’t define itself — you need a theory. Building that theoretical foundation is one major contribution of the paper; the other is the empirical analysis.

Q. You note in the paper that nearly half of all cases analyzing group power were decided in that past 15 years or so. Is this a more critical question now?
A. Yes, largely because of the profusion of gay rights cases in the past 15 or 20 years. Not every case that analyzed powerlessness was about gay rights — some were about juveniles, for instance — but many were. Groups that already have suspect status don’t have to request it, and it is basically unprecedented for a defendant to challenge the suspect status of a group that already has it. Gays are one of the only groups whose status has not yet been addressed by the Supreme Court.

Q. In your analysis, what did you discover about the relative power of different groups?
A. Most conformed to what people might have guessed — but I was surprised by how stark the gaps were between some groups. For gender, the gap between male and female power seems enormous at both the state and federal level. That’s a really robust result — the gap is huge. I knew women were descriptively underrepresented compared to men, but I didn’t know what to think about policy outcomes for women relative to those for men. It is bigger than the gap between blacks and whites, it is bigger than the gap between rich and poor. When you think about what cleavages are in the news, you hear about race and income, but you don’t hear as much about gender differences in terms of influence. So this suggests to me that we should start thinking about gender more. For income, my work pretty much confirms the conventional wisdom that the rich are substantially more powerful than other groups and the poor are dramatically less influential. With race, I found that blacks and Hispanics are less influential than whites, although this doesn’t completely hold up for Hispanics at the state level. It might be that Hispanics are a growing group that’s not as ideologically liberal as African Americans, so I have no reason to doubt the conclusion that blacks are more powerless than Hispanics, at least at the state level.

Q. What do your findings tell us about existing law?
A. My analysis clearly shows that, in particular, blacks and women still deserve and need their suspect status. We often see claims that African Americans have advanced enough that they no longer need their suspect status, but this analysis shows that isn’t the case. It confirms existing law. But other findings challenge current law, particularly those with respect to the poor. The poor are clearly less influential than the middle class or the rich. That suggests that the Supreme Court made a mistake in the early 1970s when it said the poor are not a suspect class. That’s probably the most important group right now that’s not a suspect class but should be.

Q. What does it mean that we now have a way to measure group power?
A. I find this part exciting. My general instinct with law is to find ways to bring empiricism to legal analysis. I’ve done that a lot of that with election law, and this is a way to introduce empirical analysis into one of the more important questions of constitutional law. You can imagine experts being called to introduce this kind of data in future equal protection cases, which would be really helpful. It would be great to have suspect class designations based on actual evidence instead of speculation over which groups are powerful and which groups aren’t.